This article is sponsored by Shoun Bach
It may surprise you to hear that adultery is a crime in Virginia. It is a misdemeanor, punishable by up to a $250 fine. Although adultery is often not prosecuted, the fact that it remains a crime raises some interesting issues in a divorce case.
In January of this year, a bill was presented to the Virginia Senate Courts of Justice Committee which would have changed this. The proposal was to decriminalize adultery, but keep the up to $250 fine in place as a civil penalty. The bill did not pass, so adultery remains a crime in Virginia.
Even though the threat of prosecution for adultery is low, that threat alone is enough to confer rights to the accused spouse. The most important of these is the ability to assert your 5th Amendment privilege (“take the 5th”) and not incriminate yourself. You probably recognize this concept from t.v. shows – “You have the right to remain silent.” If your spouse’s attorney questions you about an affair, you can keep quiet. If your lover is also married, he or she can also take the 5th. The result is that the innocent spouse is forced to find another way to prove adultery, usually by hiring a private investigator. This can become expensive and take time.
The end result is that the cheating spouse can shield him or herself behind the crime. Although it may seem counter-intuitive, making adultery a civil penalty and not a crime would actually have had a harsher impact on the cheating spouse in a divorce.