Blogs from April, 2024

Many divorcing couples in Virginia grapple with the question of whether evidence of infidelity will affect the outcome of a divorce case. Even if you are planning to move forward with a no-fault divorce process, you or your former spouse may have questions about whether documented incidents of adultery will impact the legal process.

Understanding the legal implications of adultery in a Virginia divorce can help you manage your expectations as you enter divorce proceedings. Keep reading to learn whether adultery is considered when making important divorce settlement decisions, like property division or alimony.

Adultery & Fault vs. No-Fault Divorce in Virginia

Virginia law recognizes two types of divorce: no-fault and fault-based. A no-fault divorce may be granted without the need to prove wrongdoing by either party, often attributed to irreconcilable differences leading to a breakdown in the marriage. In these cases, it is unlikely that any past infidelity will have any bearing on the divorce proceedings.

On the other hand, a fault-based divorce requires the petitioner to prove that their spouse's misconduct led to the demise of the marriage. Under § 20-91 of the Virginia Code, adultery is explicitly listed as grounds for a fault divorce. Therefore, you or your soon-to-be ex-spouse may cite it as grounds for a divorce if you plan to go the fault-based route.

When Adultery Cannot Be Used as Grounds

Notably, under § 20-94, certain conditions are outlined whereby a claim of adultery might not be sufficient grounds for divorce. These include scenarios where the couple has voluntarily cohabited after the knowledge of adultery or if the infidelity occurred more than five years before the couple filed for divorce. Additionally, it cannot be used as grounds for divorce if it "was committed by the procurement or connivance of the party alleging such act."

Is Adultery a Crime in Virginia?

Interestingly, adultery is not only grounds for divorce but is also classified as a crime within the state. Specifically, § 18.2-365 of the Virginia Code decrees adultery as a Class 4 misdemeanor. Though this classification underscores the seriousness with which Virginia law regards marital fidelity, many see this as a relic of the past. Criminal charges for adultery are infrequently pursued in contemporary legal practices.

Impact of Adultery on Divorce Outcomes

Recognizing adultery as grounds for divorce inherently acknowledges its potential to impact divorce settlements. Should one party file for divorce citing adultery, or if adultery is proven in court, it can notably influence the division of marital property.

Virginia courts may consider the circumstances of adultery when determining how to divide assets between spouses equitably. While this does not mean the "innocent" spouse will automatically receive all or most of the assets, the presence of adultery could lead to a more favorable settlement for them, depending on the specifics of the case.

Adultery in Context with Dissipation of Marital Assets

When examining claims of adultery in divorce proceedings, it's crucial to consider how these allegations may interact with claims of dissipation of marital assets. Dissipation occurs when one spouse uses marital funds or assets for purposes unrelated to the marriage, especially in a manner that benefits them individually or in a way that is intentionally at the expense of the other spouse.

If adultery is proven, courts may scrutinize whether the adulterous spouse spent marital assets on their affair, such as gifts, trips, or housing for their affair partner.

Virginia courts are empowered to consider both the act of adultery and the financial implications of that behavior when making equitable distribution decisions. If it is determined that marital assets were indeed dissipated as part of adulterous activities, this could lead to adjustments in the division of property that serve to compensate the other party for what would have been their share of the wasted assets.

Effects on Alimony/Spousal Support

Equally important to consider is how evidence of infidelity might affect alimony or spousal support decisions. In Virginia, courts have discretion in awarding spousal support and can take into account the circumstances leading to the dissolution of the marriage, including adultery.

If a court finds that infidelity had a significant role in the breakdown of the marriage, this could result in a reduction or elimination of the amount of spousal support awarded to the unfaithful spouse. It is vital, however, to remember that each case is unique, and outcomes can vary greatly depending on the facts and evidence presented.

If you are going through a divorce and believe that infidelity may affect your case, reach out to our law firm for guidance. The divorce lawyers at The Law Offices of Daniel J. Miller are here to help.

Understanding the Legal Principle

One aspect of Virginia's DUI law that many find confusing is the legal concept of "implied consent." In Virginia, operating a motor vehicle on any highway within the Commonwealth implies that you have agreed to submit to a chemical test to determine the alcohol or drug content of your blood if arrested for a DUI. This is found under § 18.2-268.2 of the Code of Virginia.

Essentially, drivers give advance consent to post-arrest testing. This testing can be crucial in a DUI case, as it helps establish whether a driver was under the influence of drugs or alcohol at the time of the arrest.

The statute specifically mentions that this consent extends to having samples of blood, breath, or both taken if the individual is arrested under suspicion of violating DUI laws and that this testing must occur within three hours of the alleged offense. This period is critical as it seeks to measure the driver's blood alcohol concentration (BAC) or drug levels close to the time of the driving to ensure accuracy and relevance to the case.

Consequences for Refusal

But what happens if you refuse to take the chemical test? Virginia law, specifically § 18.2-268.3, outlines the penalties for such refusal.

For a first refusal, the law deems it a civil offense and results in the suspension of the driver's privilege to drive for one year—a penalty that runs in addition to any other suspension related to a DUI charge.

However, the situation becomes significantly more severe with a second refusal within ten years, especially if the individual has a prior DUI conviction or previous refusal. In this case, the refusal counts as a Class 1 misdemeanor. The penalties for this are a loss of driving privileges for three years from the judgment date, in addition to any suspension tied to a DUI charge.

Blood or Breath: Does It Matter?

The law makes no distinction between refusing a breath test and refusing a blood test—the penalties are the same. What constitutes an "unreasonable refusal" might vary depending on the circumstances. Still, generally, if the court believes no legitimate reason existed for the refusal, it will likely find it unjustified, and the driver will face penalties.

What to Do If You Are Arrested & Refuse a Chemical Test

Understanding your rights and obligations under implied consent laws is important. Whether you're a resident or a visitor, recognizing the seriousness of implied consent can help guide your decisions and actions if faced with a DUI arrest. However, what happens if you have already refused a chemical test? Do you have options?

If you find yourself facing a DUI charge or dealing with the implications of refusing a chemical test in Virginia, it is strongly recommended to seek legal advice from a qualified attorney, like ours, at The Law Offices of Daniel J. Miller. We can help you assess your case, including your refusal to take a chemical test and help you identify legal strategies moving forward.

If you're dealing with a DUI case that a chemical test refusal has complicated, don't hesitate to reach out to our law firm to discuss your case and explore your options.