Although it is extremely rarely prosecuted, adultery has long been a crime under Virginia law, specifically a Class 4 misdemeanor. And only a few days ago, the legislature reaffirmed this fact by rejecting an effort to decriminalize it. Although on its face this law seems to discourage people from engaging in marital affairs, in many ways it actually protects such adulterous activity in divorce proceedings.
Here’s why: In Virginia, a spouse can seek divorce on the grounds of adultery, which if proven, could result in significant financial gain for that spouse when the court distributes marital property and considers spousal support. With that said, it is very difficult to prove adultery, and as such, one of the best ways to do so would be to get the allegedly adulterous spouse to admit to it in court.
However, via the Fifth Amendment of the United States Constitution, Americans are protected from self-incrimination in criminal matters. And since adultery is a crime, the spouse being questioned about cheating can plead the Fifth, which allows them to avoid discussing the matter in divorce proceedings. From one perspective, this provides important protection to the spouse being questioned, and from the other perspective, the criminality of adultery actually only serves to reward a cheating spouse during divorce proceedings. It further causes the other spouse to expend much more in legal fees and expenses in order to try to prove adultery in other ways, such as by hiring private investigators, digging up hotel records and combing through Facebook.
We at PJI Law have been on both sides of such cases and as always, we watch legislative developments closely in order to provide our clients with the best possible representation. Please do not hesitate to contact us if you have any further questions on how this issue might affect your marriage or divorce.