Can Your Paramour or Mistress Be Forced to Testify in Your Divorce Trial?

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Adultery as a Fault-Based Ground for Divorce

As discussed in previous blogs, adultery is one of the fault-based grounds for divorce in Virginia. The question then arises: can your paramour or mistress be forced to testify about your sexual relationship in your divorce trial? The answer is both yes and no, depending on the circumstances of your case. The recent case of Davis v. Davis helps illustrate how this works.

The Case of Davis v. Davis

In the Davis case, the husband’s attorney deposed the wife’s paramour, with whom she had been having an affair during the marriage. During the deposition, the paramour refused to answer any questions related to his relationship with the wife, citing his fifth amendment privilege against self-incrimination. He claimed that he could be prosecuted for “fornication, prostitution, or consensual sodomy.” The husband’s attorney moved the court to compel the paramour to testify, arguing that there was no legitimate fear of criminal charges.

Court’s Decision on Fifth Amendment Claims

The trial court explained that to invoke the fifth amendment privilege, the paramour must demonstrate how seemingly harmless answers could potentially link him to a crime. The linkage must not be too speculative or incredible, as the fifth amendment does not protect against “remote and speculative possibilities.”

Prostitution Charges Rejected

The court immediately dismissed the paramour’s claim that his relationship with the wife could lead to prostitution charges. The few gifts the wife gave the paramour were deemed insufficient to constitute “sexual intercourse for hire.”

Fornication and Sodomy Charges Examined

The paramour’s claims of possible charges for fornication and sodomy under Virginia Code Sections 18.2-344 and 18.2-361 were also considered. The court noted that numerous appellate courts had found these statutes unconstitutional due to their infringement on privacy rights, except when the acts were committed in public or involved minors, neither of which applied in this case.

Statute of Limitations on Fornication

The court pointed out that fornication is a misdemeanor in Virginia, with a one-year statute of limitations. This meant that the paramour could not be prosecuted for fornication that occurred over a year ago.

Sodomy as a Felony

Sodomy, however, is a felony in Virginia and has no statute of limitations. Therefore, the paramour could be charged with sodomy at any time.

The Court’s Final Ruling

The court ordered the paramour to answer questions about fornication with the wife that occurred more than a year before the deposition, as the statute of limitations prevented prosecution for those acts. Regarding any fornication that occurred within a year of the deposition and any acts of sodomy, the court required more information to determine whether these acts took place in public, which could lead to criminal charges.

Conclusion: Proving Adultery May Not Be Simple

As you can see, proving adultery in a divorce case may not be as straightforward as expected. While a paramour or mistress can be forced to testify about the relationship, this may not apply if the testimony could potentially lead to a criminal conviction.

Seek Legal Guidance for Fault-Based Divorce Claims

If you are going through a divorce and claiming fault-based grounds, you need the help of a qualified family law attorney who understands the law and can help you gather the necessary evidence to prove your case. The family lawyers of the DiPietro Family Law Group have decades of experience with family law issues across Northern Virginia and Washington, DC. Contact us today for a consultation at (888) 530-4374.

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