Pernell , Va. Nevertheless, circumstantial evidence must be clear and convincing. Haskins , Va. Coe , Va. For a while, it seemed almost impossible to prove extramarital sex. Painter , Va. He further testified that she kissed one of the departing visitors. In response, the wife testified she had been separated from her husband for almost a year and was thus free to date.
She denied ever having sex with another man during the marriage and claimed that she had maintained separate hotel rooms from the attorney-boyfriend while on vacation. The attorney and one of her earlier visitors, likewise, never admitted having sex with the wife. The Supreme Court of Virginia held that such circumstantial evidence was insufficient to prove adultery. The court clarified the scope of Dooley two years later in Coe v. Neither the wife, nor a witness on her behalf, provided any explanation of her activities with the alleged paramour.
The Supreme Court of Virginia held that such circumstantial evidence was sufficient to prove extramarital sex. The Court reasoned that Dooley v. Dooley was distinguishable on the following grounds:. Since Coe , the presence or absence of an explanation for a late-night rendezvous has become an important factor. For example, in Watts v. Watts , 40 Va. Instead of providing an explanation, the husband invoked the privilege against self-incrimination. Based on this decision, it is quite obvious that a greater inference of extramarital sex can be made when there is no explanation offered for the reasons one spent the night with an alleged paramour.
Finally, in Hughes v.
Hughes , 33 Va. Nevertheless, each denied having sex with each other. Rather, the wife explained that their living arrangement was predicated on her economic difficulties.
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Thus, with a reasonable explanation in tow, the Court of Appeals found the case indistinguishable from Dooley and held that extramarital sex had not been proven by clear and convincing evidence. If your spouse does not exercise the privilege against self-incrimination and does provide a credible explanation for any late night rendezvous, it will be very difficult to prove extramarital sex. If your spouse does not exercise the privilege against self-incrimination or even if your spouse does and fails to provide a credible explanation for any late night escapades, extramarital sex will be easier to prove.
Even then, your spouse may be able to explain it all away. This prevents some spouses from even pursuing a divorce on the ground of adultery, because the costs of litigation exceed the benefit of owing no spousal support.
Strategic Reasons Not to Date Before Divorce
Unless you might owe expensive, long-term spousal support, seeking a divorce on this ground might not be worth the expense. If you are considering a divorce based on adultery, you should speak to an experienced family law attorney for advice. Collier , S. Johnson , Va. McIlwain , Va. Venable , 2 Va.
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Dooley , Va. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site.
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The attorney listings on this site are paid attorney advertising. Someone has to make decisions on issues regarding children, support, and property. The people in the best position to make these decisions are the parties themselves, although many need help getting there. In many cases, couples may want to work out the issues they face, but need help doing so. Fortunately, many tools exist to help.
Five Reasons Why Adultery Matters in Virginia Divorce Cases
Parties can attend mediation before or after a case is filed in court. A trained and skilled mediator can facilitate communication between parties, and help guide the parties to a resolution. Collaborative law is another option for couples who agree that they want to stay out of court, but need support and guidance to resolve the issues between them. In collaborative law, both parties retain separate, specially trained attorneys who work together, rather than against one another, in an effort to help the parties resolve their differences.
Even if you are still living in the same house, and perhaps even sleeping in the same bed, if you are considering divorce or your husband has told you he is considering divorce , you should seek counsel to ensure your rights are protected. What you do in the short term may have a significant impact on your case in the long term. If you move out of a shared residence you do not forfeit any rights you may have to the ownership of, or equity in, that residence. In Virginia, if property is acquired during the marriage , it is presumed to be marital property, and may be considered in the overall division of property by a court, regardless of how it is titled.
Likewise, if a debt was incurred during the marriage, it is presumed to be a marital debt, and may be allocated between the parties, regardless of titling. Classification of property can be complex, but it is an issue your attorney should discuss with you to make sure you are fully informed about your situation. In Virginia, a lawyer can only ethically represent one person in a divorce proceeding — never both.