“I logged on to her e-mail account and there are at least 20 e-mails from a Bill Morlok, who I have never met and do not know” or “I saw our cell phone bill and he has sent over 100 text messages to the same number I don’t recognize” is often enough “evidence” to convince a person their spouse is having an affair. Many people believe that showing continued communication with a mystery man or woman means an easy victory for granting a divorce on the ground of adultery. Unfortunately, it is not.

Virginia Law requires “clear and convincing evidence” that your partner has had sex with someone else, before the Court may grant you a divorce on the ground of adultery. To qualify as a divorce ground, your spouse’s affair must have become physical—culminating in sexual intercourse. Mental or emotional affairs do not count. Being overly familiar with a new friend at work is not enough. Proving adultery means proving sexual intercourse.

Fortunately, to prove that your spouse had sex with another, you do not have to have them on videotape. The law does not go that far. Your spouse’s own statements, in text messages or e-mails, would potentially be powerful evidence as to whether he or she had sex with the new person. But the exact wording of the messages is very important. An e-mail stating “I enjoyed having sex with you last night” (or words to that effect) would go a long way in proving adultery. An e-mail stating simply “let’s meet for dinner at that romantic restaurant tomorrow night,” by comparison, would not alone prove adultery.

Now, e-mails, text messages, or other evidence that the spouse’s relationship with the new person is a romantic one—those are all solid evidence. They help your case. But you need something a bit stronger at the core of your case, something very clearly pointing to an act of sexual intercourse.

That strong core of your case could be a very explicit admission by your spouse—either a direct admission to you upon being confronted with the affair, or perhaps a clearly worded admission in an e-mail or text message.

Or perhaps you hire a private investigator to follow your spouse, and gather the type of powerful evidence you need. For example, the investigator may photograph the cheating couple holding hands through a romantic dinner, then checking into a hotel room. The investigator may watch them go into their room, and come out the next morning—looking a bit, shall we say, disheveled. Now you have a case for adultery.

What happens if you have enough proof? What do you win for being the faithful spouse? First, having a provable case for adultery allows you to file for divorce immediately—no one-year waiting period. However, understand that a contested case filed on the ground of adultery may take many months, or even a year or more, to play itself out in court. So, you are not exactly saving time by going the adultery route.

Proving the adultery may not help that much in a custody battle, either. Virginia law directs the Courts to look at several factors when determining custody, but one parent having an affair is not one of them. The court may prohibit exposure of the children to any new boyfriend or girlfriend prior the finalization of the divorce, but likely won’t deny a cheating spouse primary custody and/or visitation based solely on the adultery.

The court is allowed (and in fact directed) to take the adultery into account when deciding how to divide the parties’ marital property—however, in most cases the adultery won’t have much of an impact here, either. And, whatever gain (if any) that you achieve may be greatly outweighed by the tremendous time and cost involved in providing the adultery. You may win a 60/40 split of marital property—but wind up spending so much in legal and private investigator fees, that you would have been better off with a 50/50 split and a no-fault divorce.

And then we come to the issue of spousal support. Here is where proving adultery can be the most useful—particularly if the adultery was committed by a spouse who would otherwise be a potential recipient of alimony. Proving a case of adultery against your spouse may prevent that spouse from receiving any spousal support whatsoever from you. This is the one area where proving a case of adultery may be extremely useful in your divorce.

Just remember that, as explained above, proving the adultery will not necessarily be a walk in the park. It will require a certain kind of evidence, to overcome the “clear and convincing evidence” requirement, and prove not just that your spouse is having a romantic relationship with another, but that the relationship has culminated in sexual intercourse.

The adultery divorce lawyers at Livesay & Myers, P.C. represent clients in Fairfax, Alexandria, Arlington, Manassas, Woodbridge, Stafford, Fredericksburg and all of Northern Virginia. Contact us to schedule a consultation today.