Adultery and the Fifth Amendment in Virginia Divorce

This topic is part of Adultery and Fault-Based Divorce.

In this article

1. Why the Privilege Applies at All
2. What Changed in 2020: The Adverse Inference
3. The Inference Needs Corroboration
4. Conduct After Separation
5. Asserting the Privilege Properly
6. For the Spouse Alleging Adultery
7. For the Spouse Deciding Whether to Answer
8. Speak With a Fault-Based Divorce Attorney

Adultery is still a crime in Virginia. It is rarely prosecuted, but because it remains a criminal offense, a spouse asked about an affair in a deposition or at trial may refuse to answer on Fifth Amendment grounds. For years that refusal cost the spouse very little. Since 2020 it can cost a great deal, because in a divorce the court may now treat the refusal as evidence of the affair.

I am Jason A. Weis, an attorney with Curran Moher Weis in Fairfax. This article explains when the privilege applies, what the 2020 change did, and how each side of a contested fault case should approach the question.

Why the Privilege Applies at All

A married person who voluntarily has sexual intercourse with someone other than his or her spouse commits adultery, a Class 4 misdemeanor. Va. Code § 18.2-365. A misdemeanor prosecution must generally be commenced within one year. Va. Code § 19.2-8.

The privilege against self-incrimination covers more than an outright admission. It extends to answers that would furnish a link in the chain of evidence needed to prosecute. Hoffman v. United States, 341 U.S. 479 (1951). That is why questions about events outside the one-year window, or about the relationship generally, can still draw an assertion of the privilege. But the witness’s say-so does not settle the question; it is for the court to decide whether the silence is justified. Id.

The privilege now reaches less conduct than it once did. Virginia’s crimes-against-nature statute, which once covered a wide range of sexual conduct between adults, now reaches only conduct with animals and certain acts between close family members. Va. Code § 18.2-361. Older guidance on this subject, including the outline previously published at this address, was written when that statute was much broader.

What Changed in 2020: The Adverse Inference

The general rule in Virginia is that a party’s exercise of a constitutional protection in a civil action may not be used against him. In 2020 the General Assembly carved out an exception. In a divorce or separate maintenance action under Title 20 filed on or after July 1, 2020, or a spousal support, custody, or visitation proceeding under Title 16.1, if a party or witness refuses to answer a question about adultery (or other conduct described in § 20-91(A)(1) or § 18.2-365) on the ground that the answer might be self-incriminating, the trier of fact may draw an adverse inference from the refusal. Va. Code § 8.01-223.1.

Three features of the statute matter in practice:

• It reaches a witness, not only a party. The alleged paramour’s refusal to answer can support the inference.
• It applies in the JDR court as well as the circuit court, in support, custody, and visitation cases.
• The inference is permissive. The court may draw it; it is not required to.

The Inference Needs Corroboration

The Court of Appeals applied the amended statute in Drenth v. Drenth, No. 0388-22-4 (Va. Ct. App. Dec. 20, 2022) (unpublished). Asked at trial whether he had had sexual relations with anyone other than his wife, the husband invoked the Fifth Amendment. The trial court drew an adverse inference, supported by evidence of the husband’s paid use of dating websites, and the Court of Appeals held that the inference and that corroborating evidence together were sufficient to support a finding of adultery by clear and convincing evidence.

Drenth did not hold that the inference alone is enough. Adultery must still be proven by clear and convincing evidence, and a divorce on a fault ground cannot rest on the parties’ uncorroborated testimony. Va. Code § 20-99. The practical lesson is that the refusal is most valuable to the spouse who has already built independent proof: financial records, phone records, third-party testimony, or investigator evidence. See Proving Adultery in Virginia.

Conduct After Separation

Since July 1, 2026, adultery is a ground for divorce only if it occurred before the parties’ last separation. Va. Code § 20-91(A)(1). See Changes to Virginia Divorce Law on July 1, 2026. The adverse-inference provision, however, is written to reach refusals about conduct described in § 18.2-365, which is not limited by the date of separation. Post-separation conduct no longer supplies a fault ground, but questions about it may still be asked where it is relevant to another issue in the case, and a refusal to answer them may still carry consequences. Courts have only begun to apply the 2026 amendment, and how they will treat that interaction remains to be seen.

Asserting the Privilege Properly

The privilege is asserted question by question, not by a blanket refusal to participate in discovery or to testify. A spouse who intends to rely on it should do so consistently and from the outset. Pleadings deserve particular care. A party who affirmatively alleges that he or she has been a faithful spouse invites the argument that the privilege has been waived as to the same subject, and that is an argument better avoided than litigated.

The privilege also does not cover every question about the other person. Whether a party knows someone, has worked with that person, or has had lunch with him or her is ordinarily a different question from whether the two have had an intimate relationship. Deciding which questions to answer, and which to decline, should be done with counsel before the deposition begins. See Virginia Divorce Deposition Tips.

For the Spouse Alleging Adultery

Ask the question directly, in a deposition and again at trial, so that the record shows a clear refusal on a specific question about specific conduct. Build the corroboration in discovery before the question is asked. Consider deposing the alleged paramour as well, since a witness’s refusal now carries the same potential weight as a party’s. And confirm the filing date: the inference is available only in a Title 20 divorce or separate maintenance action filed on or after July 1, 2020.

For the Spouse Deciding Whether to Answer

The decision is now a genuine trade-off. Answering truthfully may admit the conduct. Refusing may allow the court to infer it, and the consequences can extend to spousal support and property division as well as the grounds for divorce. Untruthful testimony is not an option, and it carries far greater risk than either. Where the spouse holds a security clearance or a position with its own reporting obligations, those considerations should be part of the same decision. See Will Adultery Impact My Security Clearance?

Speak With a Fault-Based Divorce Attorney

If adultery is alleged in your divorce in Fairfax, Loudoun, or elsewhere in Northern Virginia, whether you are alleging it or responding to it, call me at (571) 328-5020 or request a consultation. For fault-based divorce generally, see adultery and fault-based divorce in Fairfax and Loudoun.

This article provides general information about Virginia law and is not legal advice. Contacting me does not create an attorney-client relationship.

This article provides general information about Virginia law and is not legal advice. Reading it does not create an attorney-client relationship. The application of the law depends on the specific facts of each case.