Blogs from August, 2021

Unlike some "no-fault" divorce states, Virginia does allow spouses to file for fault-based divorces. Proving your spouse committed adultery could enable you to achieve a better outcome in your divorce, especially during the property division process.

At the Law Offices of Daniel J. Miller, our attorneys will help you pursue an adultery-based divorce if it's the best option, or work with you to find the best path forward in your divorce. Contact us online or via phone at (757) 267-4949">(757) 267-4949 to schedule a consultation with our team.

How Can I Prove Adultery in a Divorce?

Virginia law defines adultery as "sexual intercourse by a married person with any person who is not their spouse."

Courts have a high standard of proof when it comes to supporting allegations of adultery in a divorce case, meaning you must have "clear and convincing" evidence that adultery occurred. Importantly, emotional or mental cheating do not qualify as adultery. Your spouse must engage in physical intercourse with another party for the court to agree they engaged in adultery.

You must also have at least one third-party witness who can corroborate your allegations of adultery. Even if your spouse admits they committed adultery, you need another party who is willing to support those allegations as well. This may seem like a high standard of proof, and it is, but it's designed to prevent a spouse from blackmailing or coercing their partner into admitting to adultery they didn't actually commit.

It's especially important to note that adultery can be proven using circumstantial evidence. In other words, evidence such as e-mails, text messages, or social media direct messages could be evidence to prove adultery. However, these forms of evidence must show that your spouse engaged in physical intercourse with the other party.

So, a message from your spouse to someone telling them that they'd like to engage in intercourse or look a certain way would not be enough to prove adultery. However, if your spouse sends a message to another person saying that they enjoyed having intercourse with them, and the other person agrees that intercourse took place, it may be enough evidence to prove that adultery took place. In many cases - especially today, during the social media age - forms of evidence such as direct messages are the backbone of adultery allegations and cases.

If you don't have such evidence, you may want to look into hiring a private investigator to prove adultery took place. If you're positive that adultery occurred, hiring a private investigator may end up being an investment that pays for itself during the outcome of the divorce, which brings us to the next section of this blog.

What Are the Benefits of Proving Adultery in My Divorce?

Proving adultery rarely impacts child custody or support arrangements. Courts tend to hold the position that, while adultery may be immoral and lead to the breakdown of a marriage, it doesn't necessarily mean the adulterous parent has worse parenting abilities than their more faithful spouse.

However, if the adulterer chooses to bring the individual they cheated with into their life, and that person is a negative influence on the children, it could change the outcome of your custody case. For this to be the case, however, you may have to prove that the partner in question is indeed harmful to your children or their lives in some way. Regardless, courts tend to look unfavorably on individuals who immediately bring another partner into their life while a divorce is still ongoing, which could impact the your custody battle somewhat.

When it comes to property distribution, adultery may not change the outcome significantly. You won't be entitled to more than 50% of your spouse's marital assets or liabilities even if you prove they committed adultery and, importantly, your own property will not be off the table for distribution either.

If you want your adultery allegations to impact your property division case, you need to prove that your spouse's adulterous activities had a negative impact on your finances. Fortunately, in most cases where couples keep their funds in a joint bank account, this will be the case. You may be able to prove that your spouse was withholding funds you should have had access to, or was spending funds that you both owned on their endeavors. Either way, the court will probably compensate you for your spouse's adultery. In high-asset divorces or cases where the adulterous party spent a significant amount on their trysts, this can lead to a well-timed financial windfall that could help you pay for post-divorce expenses more easily.

Where adultery does tend to have a guaranteed impact on a divorce is concerning spousal support. In many divorces, if one partner is the primary breadwinner, they may need to pay their spouse alimony post-divorce. However, if that spouse can prove that alimony played a role in their divorce, they may no longer be responsible for spousal support payments. This can be a huge boon for potential alimony payors, especially in high-asset divorces.

In cases where the adulterous spouse can still receive alimony, their support payments may be significantly reduced, which is still a win for the payor.

How Could My Spouse Defend Themselves?

Spouses who find themselves alleged of adultery often defend themselves by:

• Claiming the other party knew of the adultery and still maintained the relationship, or encouraged the adulterous behavior, both of which may prevent the adulterous spouse from being penalized;
• The other party engaged in adultery as well (in cases where the accused party did not commit adultery but can prove the other did, this can be called a "recrimination" defense);
• The adultery occurred more than five years ago, which means the statute of limitations has passed and the court can no longer grant a divorce on the grounds of adultery.

Should I Pursue Adultery Allegations in a Fault-Based Divorce?

This is a question that can really only be answered by a seasoned divorce attorney. In some cases, a spouse may simply be unable to provide convincing evidence of adultery to the court, or may need to expend more resources on proving adultery than they will get back from the court or divorce decree in reparations for doing so.

However, in other cases where a spouse has solid evidence of adultery or knows it would be easy to procure solid evidence, and significant financial assets are at stake, using adultery as a ground for your divorce could easily be worth it.

Filing for a fault-based divorce on the grounds of a felony conviction or adultery is one of the quickest ways to divorce because you may be granted an immediate absolute divorce. Other reasons for fault-based divorces include cruelty, bodily harm, abandonment, and desertion.

At the Law Offices of Daniel J. Miller, our attorneys will help you pursue an adultery-based divorce if it's the best option, or work with you to find the best path forward in your divorce. Contact us online or via phone at (757) 267-4949">(757) 267-4949 to schedule a consultation with our team.

As a parent, you want the best for your child. During custody disputes, parents are often unsure of where exactly their child will end up going to school, and how details such as the custodial parent's location will impact that decision.

Today, we're covering how Virginia handles custody and schooling, as well as tips for ensuring your child receives the education they deserve - and how doing so could help your co-parenting relationship.

To schedule a consultation with our team at the Law Offices of Daniel J. Miller for your case, contact us online or via phone at (757) 267-4949.

Where Will My Child Go to School in Virginia?

The type of custody arrangement you have will have a significant impact on where your child goes to school.

In sole custody arrangements, where one parent has total legal and physical custody of the child, that parent typically gets to decide where their child attends school. However, sole custody arrangements are fairly uncommon unless the court declares one parent unfit.

Primary physical and joint legal custody arrangements - wherein the child spends more time living with one parent than the other, but both have the right to make decisions for their child - are more common.

In many primary custody arrangements, the parent the child spends most of their time living with - the custodial parent - takes precedence when deciding where the child attends school, since they'll need a location they can get to easily. However, the noncustodial parent - whichever parent the child spends a minority of their time living with - will still get input, since they do have legal custody rights.

Some parents are engaged in a joint physical and legal custody arrangement, wherein the child spends roughly equal time with each parent. In these types arrangements, determining where a child "should" go to school can be challenging since each parent technically has an equal right to enroll their child in the school of their choice.

Typically, decisions concerning where a child attends school are either:

• Part of a parenting plan the parents draft themselves, if they can reach an agreement; or
• Left up to the discretion of the court and the judge presiding over the case, if the parents cannot agree on where their child should receive an education.

Either way, by the time your custody case is finalized and you receive your custody order, you should know where your child is going to school and have an arrangement in place for how you'll handle matters such as governing their education and exchanging custody.

What Should We Take Into Account When Choosing a School?

If you're working with your co-parent to decide where your child should attend school, you'll want to take the following considerations into account:

• Public or private? You and your spouse may have differing opinions on whether your child should obtain a public or private education. Matters such as income can play a big role in this decision, so make sure you're both on the same page.
• Does religion play a role? If you and your spouse have different preferences concerning your child's religious education, it could be a source of conflict. Try and collaborate to figure out something that works for both of you.
• Where will you be living? If possible, choosing a school that's close to you and your co-parent will make your lives a lot easier, especially if you have a flexible custody arrangement. Otherwise, consider prioritizing custody according to whichever parent will have the child on more school days/nights.
• Will you attend school events together? If so, again, choosing a school that's close to both of you will be advantageous. You'll also want to discuss how you'll approach events such as parent-teacher conferences if only one of you wants to go, or you'd both like to know a teacher's concerns but don't feel comfortable attending together.
• What are your boundaries for your child's education? For example, how much time do you expect them to spend on homework per day? What extracurriculars can they participate in? Reaching a mutual agreement on academic boundaries - and enforcing those boundaries - is crucial if you want an effective co-parenting experience.
• Is each parent in charge of different aspects of the child’s education? For some parents, dividing responsibilities – so, for example, one parent handles sports-related activities while the other supervises homework – works well. In other custody arrangements, parents may prefer to collaborate on all aspects of their child’s academic and extracurricular activities.

At the Law Offices of Daniel J. Miller, we'll help you navigate your child custody case, working with you to ensure you pursue the best outcome for your child and their future.

To schedule a consultation with our team or learn more about our services, contact us online or via phone at (757) 267-4949.