The short answer to this question is yes. However, there are some things you should consider before making the decision to do so.
Divorce in Virginia
Virginia recognizes four causes for divorce – adultery, felony conviction, cruelty or desertion, and no-fault. The first three are considered fault grounds. In a fault divorce, a person does not have to wait six months or a year to file for divorce, however, there may be a period of time that has to elapse before the divorce is finalized.
Adultery occurs when a person has sexual intercourse with someone who is not his or her spouse. If it can be proven, it is grounds for a fault divorce. However, proving adultery is not as easy as it may seem. It requires third-party corroboration, there must be “clear and convincing evidence” (the highest possible burden of proof) of the affair, and typically the accusing spouse must prove that a sexual act did in fact.
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- The affair in question must have occurred within 5 years of the filing of the lawsuit.
- If the affair was known by the spouse and it was forgiven and the marriage remained intact, then the accused party can claim condonation (i.e. the act was condoned or accepted by the non-guilty spouse)
- If both parties committed adultery, then the accused party may claim recrimination.
Invoking the Fifth Amendment
In Virginia, adultery is considered a crime. Thus, if a spouse is accused of adultery, he or she may invoke the Fifth Amendment which provides the right to keep silent regarding criminal charges. While this is not a defense, it can make it more difficult to prove adultery.
Ultimately, proving your spouse committed adultery is not an easy task, as the burden of proof on the accusing party is substantial. However, that is not to suggest it should not be attempted in certain cases. If adultery can be proven, then it may impact spousal support, the division of assets and liabilities and custody.
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