How the 5th Amendment is Important in Divorce Cases




The 5th Amendment of the United States Constitution says that no person shall be compelled in any criminal case to be a witness against themself. 

This not only applies to providing testimony in Court but also applies to answering questions in other proceedings where a person might incriminate themself in a future criminal proceeding. These proceedings can be criminal or civil in nature and formal or informal. The 5th Amendment applies to the states, specifically Virginia, through the Due Process Clause of the 14th Amendment.


For example, in Virginia, adultery is a criminal offense.

Virginia Code §18.2-365 states as follows: “Any person, being married, who voluntarily shall have sexual intercourse with any person not his or her spouse shall be guilty of adultery, punishable as a Class 4 misdemeanor.” A Class 4 misdemeanor does not carry any jail time, but the punishment is a fine of up to $250.


The 5th Amendment is applicable in a civil case because the spouse could potentially be incriminating themselves even if the likelihood of that type of charge being prosecuted is minimal.

Therefore, in a divorce case in which adultery has been alleged to have occurred during the marriage, the person accused of adultery might assert the 5th amendment in discovery responses, in court testimony, or a deposition. For example, the spouse being accused of adultery can invoke the 5th Amendment during trial testimony. The 5th Amendment can also be asserted by that individual when asked to answer a written question in discovery that may be incriminating.


To complicate matters, the Virginia legislature just recently amended Virginia Code §8.01-223.1.

Under the amended code section that took effect July 1, 2020, if a person invokes the 5th Amendment in a civil proceeding for spousal support, custody, visitation, divorce, or separate maintenance on the grounds of self-incrimination, the Court may draw an adverse inference from such refusal. In Divorce cases, adultery is relevant to the Court determining who is at fault for a divorce, how the Court is going to divide the parties’ assets, and whether the Court will award spousal support. If spousal support is awarded, the Court also determines the amount and the length of any spousal support.


Fault grounds, such as adultery in divorce cases, are highly litigated especially in northern Virginia.

Being involved in the court process in a divorce case is already a painful and often stressful situation. When you add a contentious issue such as adultery allegations into the mix, it makes for an unpleasant situation to turn into a bitter and heated divorce. As stated above, fault grounds have a significant impact on how monetary assets are divided. If adultery is proven, a cheating spouse’s obligation to pay spousal support could be increased and the division of property negatively impacted towards the spouse who committed adultery.


This may drastically change the way family law is litigated in Virginia.

Each Judge and each jurisdiction may handle this differently. Only time will tell how much this new code section impacts a person’s ability to invoke the 5th Amendment in these types of cases.


To learn how our team can help you, contact WhitbeckBennett by calling 800-516-3964 or emailing clientservices@wblaws.com.

By: Whitbeck Bennett

By: Whitbeck Bennett

Whitbeck Bennett is proud to be a successful, full-service law firm with a strong focus on Family Law, Mental Health Law, and Education Law. We provide legal services to families and individuals, helping them get the best result possible through experience and compassion.

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