Pleading the 5th No Longer Provides Protection in Divorce

Being found guilty of adultery in a Virginia divorce case can lead to very negative outcomes.  For example, a party found guilty of adultery is not eligible to receive spousal support.  Moreover, a party’s fault is a factor that a judge must consider in dividing property and debt.  Finally, of course, a finding of adultery will be part of the divorce record, which is a public record.

In a divorce case where adultery is suspected, the first thing we lawyers do is to ask the other party.  Under existing law (until July 2020), however, an accused party and often the paramour could plead the 5th and refuse to answer the question.  Judges were not allowed to use a party’s 5th Amendment plea as proof of the adultery.  As a result, proving adultery is often very difficult.   

As of July 2020, the law is changing dramatically.  Under the new law, if a party pleads the 5th in response to a question about adultery the judge may make an “adverse inference.”  In other words, the judge can infer that adultery occurred when a party pleads the 5th.  This new law will make proving adultery much easier.  As a result, a spouse guilty of adultery is much more likely to be denied spousal support or to receive a less favorable property award.