Adultery, the 5th Amendment, and Divorce

For years, adultery has been a well-decided area of divorce law in Virginia. Because the act of adultery is a crime, divorce clients have been able to invoke their 5th Amendment right against self-incrimination when questioned about adulterous information. However, beginning July 1, 2020, courts may now take a negative inference against a party when they “plead the 5th.”[1]

In Virginia, although not commonly prosecuted, the act of adultery is a Class 4 misdemeanor.[2] All things aside, adultery is difficult to prove – a party must prove adultery by clear and convincing evidence, which is a higher standard than required in proving grounds for divorce such as cruelty and desertion.[3] Additionally, the burden of proof is on the party accusing the other of committing adultery.

Virginia Code § 8.01-223.1 now provides that a court “may draw an adverse inference from such refusal” to answer a question related to an accusation of adultery. This makes the accusing party’s burden of proof significantly easier to achieve, while also placing some pressure on the other party to cooperate.

Navigating through divorce is often overwhelming and confusing. The experienced attorneys at Hicks Crandall Juhl are ready and willing to help answer any questions you may have. To schedule a consultation, contact us here.


[1] Virginia Code § 8.01-223.1.

[2] Virginia Code § 18.2-365.

[3] See Code v. Coe, 225 Va. 616, 621 (1983); see also Haskins v. Haskins, 188 Va. 525, 530-31 (1948).

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