In West Virginia, adultery is recognized primarily as a fault-based ground for divorce, rather than a criminal offense. This means that while it is not prosecuted by the state, it can be a significant factor in divorce proceedings, influencing aspects like property division and alimony.
Defining Adultery in West Virginia
Under West Virginia law, adultery is precisely defined as the voluntary sexual intercourse of a married man or woman with a person other than the offender's wife or husband. This definition highlights that intent and the marital status of at least one party are key elements.
Key Aspects of the Definition:
- Voluntary Act: The sexual intercourse must be consensual.
- Marital Status: At least one party involved in the act must be legally married to someone else.
- Third Party: The act must occur with someone who is not the offender's spouse.
Adultery as a Ground for Divorce
West Virginia is one of the states that allows for both fault-based and no-fault divorces. If a party chooses to file for a fault-based divorce, adultery is one of the specific grounds they can allege. The relevant statute allowing for this ground is West Virginia Code 48-5-204.
- Fault-Based Divorce: When a divorce is pursued on fault grounds like adultery, the petitioning spouse must prove that their partner committed the alleged act.
- No-Fault Divorce: Alternatively, a divorce can be granted on "no-fault" grounds, such as irreconcilable differences, without needing to prove marital misconduct.
Proving Adultery in West Virginia Courts
The burden of proof rests heavily on the party alleging adultery. In West Virginia, the law requires that the alleged adultery be proven by clear and convincing evidence. This is a higher standard than the "preponderance of the evidence" typically seen in civil cases but lower than "beyond a reasonable doubt" used in criminal cases.
What Constitutes "Clear and Convincing Evidence"?
This standard requires that the evidence presented leaves no reasonable doubt in the mind of the court regarding the truth of the facts asserted. While direct evidence (like a confession or eyewitness testimony) is the strongest, it is often rare in adultery cases. Therefore, courts frequently rely on circumstantial evidence.
Types of Evidence Often Used:
- Circumstantial Evidence: This involves proving a combination of circumstances that lead to an irresistible conclusion of adultery. Examples include:
- Opportunity: Evidence that the accused spouse had the chance to commit adultery (e.g., spending the night with another person in a private setting).
- Disposition/Inclination: Evidence showing a mutual romantic or sexual inclination between the accused spouse and the third party (e.g., affectionate letters, public displays of affection, hotel receipts, text messages, emails).
- Witness Testimony: Accounts from private investigators, friends, family, or even the third party.
- Direct Evidence: Less common, but includes:
- Confessions by the accused spouse.
- Eyewitness accounts of the act itself.
Impact of Proving Adultery in a Divorce
Successfully proving adultery can have several significant implications in a West Virginia divorce case:
| Aspect of Divorce | Potential Impact of Proven Adultery |
|---|---|
| Alimony (Spousal Support) | While not an automatic bar or award, the court may consider fault, including adultery, when determining the amount and duration of alimony. |
| Property Division | West Virginia is an equitable distribution state. While marital misconduct can be a factor, it generally doesn't lead to a substantial change in property division unless it directly impacts the marital estate (e.g., funds spent on an affair). |
| Child Custody | Generally, adultery does not directly affect child custody unless it can be proven that the misconduct has a direct, negative impact on the children's well-being or environment. |
| Court Costs/Fees | In some cases, the court might order the at-fault party to pay the other spouse's legal fees and court costs. |
| Timing of Divorce | Proving adultery as a fault ground can sometimes expedite the divorce process compared to a no-fault divorce with a mandatory separation period. |
Important Considerations
- Statute of Limitations: While not explicitly mentioned in the provided reference for adultery, generally, divorce grounds have limitations on how long after the event they can be filed.
- Defenses: Common defenses against an adultery claim include:
- Condonation: The innocent spouse forgave the adultery after discovering it and resumed marital relations.
- Connivance: The innocent spouse consented to or set up the adultery.
- Recrimination: Both spouses committed adultery.
- Insanity: The adulterous spouse was mentally incapable of understanding the nature of their actions.
Understanding West Virginia's adultery law is crucial for anyone navigating a divorce in the state, particularly when considering fault-based grounds.
