Does the mere fact that wife is living together with her boyfriend whom she intends to marry support a finding of adultery for divorce in Virginia?
Not in the case of Hughes v. Hughes, 33 Va. App. 141, 531 S.E.2d 645 (2000) , where the Virginia Court of Appeals reversed the trial court’s holding that such cohabitation was sufficient to prove the fault ground of adultery.
In Hughes, the wife was forced to leave the marital residence with the children. Due to her financial circumstances, the wife lived with her parents for one month, then moved into a YWCA abused woman’s shelter, then moved into another shelter at St. John’s Villa in Richmond, Virginia, before finally moved into the home of her male friend and co-worker. She and her children shared a separate bedroom in the home of her male friend. In deposition testimony, the wife testified that she lived with her male friend because she had nowhere else to live. The male friend admitted that he wished to marry the wife and found her sexually attractive. Both admitted that they loved each other, but denied that they had engaged in sexual intercourse with each other. In addition to living in the same residence, the wife and her male friend shared meals and household chores, and took walks and went to the movies together.
The wife filed for a no fault divorce in the Circuit Court of Chesterfield County, Virginia, under Virginia Code Section 20-91-(A)(9)(a), on the grounds that she and her husband had lived separate and apart for a period in excess of one year, with at least one of them having the intention that the separation be permanent. The husband filed an answer and a counterclaim alleging adultery and desertion by the wife, additional grounds for divorce in Virginia under Virginia Code Section 20-91(A)(1) and (6). The wife denied the husband’s allegations and claimed mental abuse and physical abuse. The trial judge relied on deposition testimony of the parties and granted a divorce to the husband based on wife’s adultery. The wife appealed the divorce court judge’s decision.
The Virginia Court of Appeals noted that it would not hold, as a matter of law, that two people could not live in the same house without engaging in sexual intercourse before marriage. In reviewing the sufficiency of the evidence as a matter of law, the court ruled the evidence was insufficient to prove adultery by the clear and convincing standard. The most important evidence contrary to the judge’s findings were the wife’s economic motive in moving in with her male friend along with their open cohabitation and the sworn denials of sexual intercourse by the parties. In overturning the decision of the Chesterfield County Circuit Court judge, the Virginia Court of Appeals reviewed those cases where circumstantial evidence of adultery was suspicious but not sufficient, and distinguished those cases where circumstantial evidence was sufficient.
For the cases where suspicious or circumstantial evidence was not sufficient, the appellate court cited the Supreme Court of Virginia’s decision in Painter v. Painter, 215 Va. 418, 211 S.E.2d 37 (1975), where the trial court found evidence of white stains on the husband’s underwear and pants and lipstick on his shirt. A note addressed to the husband stated, “I need you so”. The husband was seen kissing and hugging a woman in her automobile. They drove away for several hours, then returned, kissing again. The husband was also observed visiting the woman’s house for several hours late at night, with only a dim light in the living room on, and leaving at 1:30 a.m. The husband and the woman denied having a sexual relationship. The Supreme Court held that the circumstances were strongly suspicious, but not sufficient to overturn the chancellor’s finding that there was not clear and convincing evidence of adultery.
The court also noted the decision of the Supreme Court of Virginia in Seemann v. Seemann, 233 Va. 290, 293, 355 S.E.2d 884, 886 (1987) , where the wife admitted that she slept in the same bedroom as another man, but denied having sexual intercourse with him, for religious reasons. The wife and the man had slept in hotels together four nights while they traveled cross country and spent two nights in a hotel in Virginia Beach. The Supreme Court refused to overturn the commissioner’s fact finding that the evidence of adultery was not sufficient due to the religious connotations that wife gave to sexual intercourse outside of marriage, though her testimony might have been inherently incredible otherwise.
Finally, the Court of Appeals noted its decision in Romero v. Colbow, 27 Va. App. 88, 497 S.E.2d 516 (1998) , where the court reversed the trial court’s finding that the commissioner erroneously concluded the evidence did not clearly and convincingly prove the wife committed adultery. In Romero, the husband suspected his wife of cheating, followed her, and caught her kissing another man in a car at 1 a.m. The wife had hidden telephone bills revealing the other man’s telephone number and had used the other man’s credit cards. In addition, the husband had found Polaroid photographs of his wife in only a sweater, without her underwear on, which photographs he had not taken. When questioned about the photos, the wife cited her 5th Amendment privilege against self-incrimination. Both the wife and the other man denied having sexual intercourse with each other. The appellate court ruled the evidence in Romero was not clear and positive and convincing evidence to support the charge of adultery, citing Haskins v. Haskins, 188 Va. 525, 50 S.E.2d 437 (1948).
These cases were distinguished by the Court of Appeals in the Hughes case from those cases where there were covert meetings between the spouse and alleged paramour, and no credible explanation of the suspicious circumstances, including Coe v. Coe, 225 Va. 616, 303 S.E.2d 923 (1983), Higgins v. Higgins, 205 Va. 324, 136 S.E.2d 793 (1964) , and Gamer v. Gamer, 16 Va. App. 335, 429 S.E.2d 618 (1993) . In the Coe case, the wife spent the night or early morning hours at another man’s house, without any explanation or denial. In Higgins, the wife was found partially undressed in a hotel room with another man while drinking, without a plausible explanation, claiming that she met the man there for a business meeting and took off her clothes to wash her hair in the soft water available there. The Court of Appeals noted that it had criticized, but did not overturn, the trial court’s decision to grant a no fault divorce in Gamer, where the evidence was the husband had been found dressed in only his robe, at home, with another woman hidden in the bedroom closet. The Court of Appeals affirmed the trial court’s no fault divorce ruling as harmless error, because granting a divorce based on adultery would not have had any economic impact on the marital property in the case.
You should discuss with your Virginia divorce attorney, or Richmond divorce lawyer James H. Wilson, Jr., whether there exists clear, positive and convincing evidence of adultery in your particular circumstances.