Do wife’s allegations of husband’s sexual activity on the internet, including sexting, soliciting sexual partners on websites, visiting adult websites, saving nude photos of himself, sending sexually explicit e-mails and saving sexually explicit graphics on his computer, constitute sufficient grounds for adultery in Virginia?
No, not in the case of Keeler v. Keeler, Case No. CL2009-15830, where the divorce court judge in the Circuit Court of Fairfax County, Virginia, sanctioned the plaintiff wife’s counsel after granting the defendant husband’s demurrer finding that the wife’s complaint for divorce did not state a cause of action for adultery.
In Keeler, the wife filed a complaint for divorce from her husband on the grounds of adultery. The wife’s alleged the following in support of husband’s adultery: that the husband was leaving the marital home for reasons not related to his employment; that he was using Craigslist to solicit sexual partners; that there were sexually explicit graphics saving on his computer; that the husband saved nude photographs of himself on the home computer; that husband had saved e-mails soliciting “adult activity” with strangers he met online; that the husband was visiting adult websites; and, that the wife suspected the husband was engaging in adulterous activity, to be developed by further discovery in the divorce case.
In granting the defendant’s demurrer to the complaint for divorce, the court noted that the allegations did not allege with specificity, the time, place and circumstances of adultery, as required in pleading adultery in Virginia, citing the case of Miller v. Miller, 92 Va. 196, 23 S.E. 232 (1895). The wife’s attorney admitted to the court that the wife had no facts to prove the actual sexual intercourse required to support adultery grounds for divorce. While circumstantial evidence may be used to prove adultery, the party cannot rely on mere suspicion to justify adultery grounds. In this case, the vagueness of the wife’s allegations did not provide the husband with enough specific notice to allow him to prepare his defense.
The wife admitted that she had obtained her information through a forensic investigation of the family computer. The wife’s attorney claimed the wife was trying to save the husband from the embarrassment by not listing the specific, explicit details of his adulterous conduct. Yet, he admitted under questioning by the judge, that he did not have the specific evidence of husband actually having sexual intercourse with a woman not his wife. Under Virginia Code § 8.01-271.1, an attorney signing a pleading is certifying that the pleading is well-grounded in fact and warranted by law or a good faith argument for the extension of the law. Ford Motor Co. v. Benitez, 273 Va. 272, 639 S.E.2d 203 (2007). As counsel lacked sufficient facts to support adultery in the Keeler, he was order to pay attorney’s fees to the husband.
You should consult with your Virginia divorce attorney or Richmond divorce lawyer James H. Wilson, Jr., to discuss if you have sufficient factual support for a divorce based on adultery.