What is divorce?
Divorce is the legal process to terminate the marital relationship and address the legal consequences of marriage such as support, division of property, allocation of debts, and the custody, visitation and support of minor children.
What is adultery?
Adultery occurs when a married person has sexual intercourse with a person other than his or her spouse during the marriage.
Does adultery after separation matter in Virginia?
Post-separation adultery can still constitute adultery in Virginia as it may prevent a reconciliation of the parties.
What proof is necessary to prove adultery?
Adultery must be proved by clear and convincing evidence. The evidence of adultery can be circumstantial rather than direct, but it must exclude reasonable explanations of the conduct.
Is adultery difficult to prove in Virginia?
Adultery may or may not be difficult to prove, depending on how discreet the parties are. In addition to confessions of wrongdoing, adultery may be most easily proved by circumstances, the statements of the paramour, records of suspicious transactions, and observations of third parties, such as friends, family members, or private investigators.
Does the 5th Amendment privilege against self-incrimination provide absolute protection in a divorce?
Recent court decisions recognize a right to privacy encompassing sexual relationships between consenting adults in private, thus limiting the use of the 5th. In addition, the statute of limitations for prosecuting adultery in Virginia has been one year, so older conduct may not be prosecuted.
What is the burden of proof?
The burden of proof is a legal term that identifies the responsible party and quality of evidence or proof that must be produced to convince the judge of something. The burden of proof can refer both to the burden of persuasion – the party who has the ultimate burden of convincing the judge of something, and the burden of production – the party who has the burden of proving or rebutting something at a particular stage of the trial. The burden of proof often rests on inferences and presumptions.
What are the different standards for burdens of proof?
The ordinary standard of the burden of proof in a civil case is preponderance of the evidence. The highest standard in a criminal case is beyond a reasonable doubt. An intermediate standard, usually applied to quasi-criminal acts, is clear and convincing evidence.
What is marital waste?
Martial waste occurs when a spouse spends or dissipates marital assets for his or her own separate purposes in contemplation of separation or divorce. The consequence of marital waste is a credit in favor of the other spouse for his or her equitable share of the value of the wasted property.
What is the burden of production?
The burden of production is the burden on a party at a particular stage in a trial of producing evidence to establish a prima facie case or an affirmative defense, or on a particular issue to rebut or overcome an inference or a presumption, or to rebut or overcome the establishment of a prima facie case. The burden of production is different from the burden of persuasion, which is the ultimate burden of convincing a judge or jury of the desired outcome in a case. The burden of production often shifts from one party to another during a trial.
What is condonation?
Condonation is a defense to adultery, and consists of a innocent spouse forgiving the guilty spouse of his or her wrongdoing through the action of living together again as husband and wife. In effect, the spouse has condoned the other spouse’s adultery. There is some controversy over what exactly constitutes living together as husband and wife. Random, occasional, sexual intercourse is usually not considered to be sufficient, while regular cohabitation is.
What is recrimination?
Recrimination is the existence of fault grounds against either spouse in a divorce case. A judge may refuse to recognize adultery as grounds for divorce if the spouse alleging the adultery has also committed fault in the dissolution of the marriage. A Virginia judge may grant a divorce based on a one year separation of the parties regardless of the fault alleged by either party. Often, in a contested divorce case, both spouses have alleged the existence of fault grounds against the other. A complaint for a divorce based on fault grounds is typically met with an Answer and Counterclaim for a fault-based divorce. The fault grounds of desertion and abandonment of the marital relationship, which may be constructive, cruelty and reasonable apprehension of physical harm, and/or adultery, which may be post-separation adultery, frequently occur with the breakdown of any marriage.
What is a high conflict divorce?
Divorce professionals, lawyers and counselors, are frequently confronted with high conflict divorces. A high conflict divorce is a divorce characterized by extreme levels of conflict and controversy beyond what is rational and cost effective. Some counselors have opined that high conflict divorces are the result of one or both spouses having personality disorders. A divorce can be one of the most stressful events experienced by a person, which can sometimes bring on psychological distress and atypical behavior. The divorce becomes the battleground for one or both of the spouses, and it may be pursued emotionally far beyond what is financially sound or feasible.