WTDW Podcast | Episode 18: What To Do When… There is Adultery.

Episode 17: What To Do When… There is Adultery.

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EP 17: What To Do When… You Are Purchasing a Firearm with Scott Cardani and Jackie Critzer

Intro 0:01
Welcome to What To Do When….A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss What to do When, and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.

Jackie Critzer 0:30
Welcome back to What To Do When… A Dummies Guide to the Legalverse. It’s Jackie Critzer and Scott Cardani. Here in Richmond, Virginia.

Scott Cardani  0:39
What’s on the docket for today, Jackie?

Jackie Critzer 0:41
What to do When… there’s adultery.

Scott Cardani 0:45
That’s scary. That’s a scary subject. Well, I have trouble saying that.

Jackie Critzer 0:49
It is a scary subject, and it doesn’t matter. We’re really going to address today both right? Whether it’s the person calling us who says, oh, no, my spouse is cheating. What do I do next? Or you’re the person who’s been caught cheating? Because let’s be realistic, we get the calls from both sides, right?

Scott Cardani 1:08
Yes, we do. You know, and, quite frankly, adultery is one of those ones in the code that we know is kind of gets you to court automatically. You don’t have to have a waiting period. So it’s a fault ground fault based grounds for divorce. So it’s a really important one, but it’s also one… and I think the reason they have it that way is it’s usually a big issue. And it really smashes the trust and a relationship pretty quickly. And sometimes those can be healed. And we we always advocate for that healing, but sometimes it just can’t get around it.

Jackie Critzer 1:44
Well. And so in order to allege to accuse someone in a pleading, or in the document, the divorce document that you filed with court, what do you have to allege at least to survive what we would refer to as a demur or survive across pleading saying that there wasn’t sufficient allegations for adultery?

Scott Cardani 2:08
Well in this is big, there’s case law on it. But Virginia is a pleading state, which means really, it’s a notice state, which means you really only have to give notice, you don’t have to get into real detail. But then there’s a case law out there that says you got to kind of give some, some meat to that. So when you’re doing these things, and what we’re doing is we we kind of have to put it in a time context is the big one. So when did the adultery happen? It’s for us, especially if we’re defending, so we’re saying, you know, my husband, with adultery at the beginning of December, it doesn’t have to necessarily be December 1, right.

Jackie Critzer 2:44
Sure. The date? I don’t think that date is necessarily necessarily has to be specific. But the court wants to also see I think, to survive a demurrer. You’d have to also say, with whom? And where.

Scott Cardani 2:59
And where. You you know, and with whom can be a little funky, too, because sometimes you might only know it was Susie at his office?

Jackie Critzer 3:06
Or maybe you don’t know the name at all. Yeah.

Scott Cardani 3:08
So as much distinction as we can get to plead that we just need to be, you know, sometimes I remember one time I just described it by the person, you know, the attributes the person what we knew about them?

Jackie Critzer 3:21
Well, and Scott, how have you guided your clients and how to gather the information that we need in order to file on adultery?

Scott Cardani 3:32
Well, the simplest way, but probably the most expensive way is to hire personal investigator, a private investigator. That is probably the cleanest, most efficient way, they have ways to skip trace phones and do all kinds of stuff to get information that we don’t have readily available. So quite frankly, you’re gonna pay a fee for that. But that’s probably the cleanest way to get information.

Jackie Critzer 3:58
So if you and I tell people, if you have a suspicion, you really think that your spouse is cheating, not coming home at night and staying with someone else, whatever the case may be. I first tell them not to follow them. That’s a no, no, that’s going to get you a charge.

Scott Cardani 4:13
You can’t put a tracker in their car?

Jackie Critzer 4:15
You know, you could but you may end up catching charges for other things. So when we can talk about stalking and what rises to the level of stalking, even in a situation like this in another podcast, but it’s really important that you not put yourself in that position or a family member or a friend. Different story now, right? If your friend calls you up and says I saw Johnny at, you know, the liquor store and he was getting out of some girl’s car and they were hugging and kissing, like that’s different. She didn’t maybe follow the Johnny right? But then if she then pursued them, it’s just it just gets messy so you just it’s important to call an attorney, or private investigator, we have a shortlist we like to use more investigation services. is, and some others, but we partner with a lot of different companies that help us figure out whether the person is in fact committing adultery. And it’s important to pick a legal team that’s going to have a reliable private investigator and reliable safe forensics. Sometimes we need to use the forensics.

Scott Cardani 5:21
This is this is the big issue that people don’t really get. And this is horrific, and I understand it from both sides. But you could literally catch her spouse in a hotel room naked. And there’s another girl in a shower naked, but you haven’t, to the level that’s a slam dunk proven adultery. Even though that seems like I got him red handed. Right? So the code is very clear. This case law is very clear. It’s the act of sex. Really, that’s the adultery. Right? Obviously, there’s circumstantial evidence, which shows all the things that happened around that. But Jackie and I both had cases where we believed in early career was a slam dunk adultery, just based on the circumstantial evidence, and the court would be like, I don’t know if I have adultery or not. So that’s why it’s so important to hire an investigator or private investigator or get some help. And this because we think we know because he came home with Mary’s lipstick, on his lapel, Carrie Underwood song. Yeah. And so, you know, and it’s honestly not enough. So you have to do there. There’s a process that we have to go through. But the bottom line is this too. And this is the other thing about adultery. And, Jackie, I’ll let you talk about this. What does it matter anymore in the court’s eyes?

Jackie Critzer 6:43
Well, that’s a really good question. And, and so, importantly, just backing up two steps, there is a case here in Virginia, that’s not that old, where there was a private investigator and followed this couple to a hotel. And The couple stayed in the hotel overnight, and then they came out together the next day, something like that. And when they were in court, the explanation was, well, we slept in different beds. And that wasn’t enough for adultery, per se, right? So they have to be able to enact that and you can’t take a picture of people having sex, that’s against the law to even a private investigator can’t do that. But it has to be more than just, you know, they were friends, neighbors, pals, and for whatever reason, we’re in a hotel together there, there is more evidence, it’s necessary than that. Because that’s what really leads to where it matters. Did Did, did your spouse spend money, on trips on gifts? How much of the marital estate was spent on this person? Which it’s not always about money. But that’s an important piece of the divorce process, because we’re looking at equitable distribution, you know, did they had a case where the guy bought this woman, a few $100,000, where the horses and horse Tech and a barn and that made a big difference? We didn’t go to court, you might imagine why not? Right? We didn’t have to go to court where it will settle that. But it sometimes makes a difference. And it sometimes doesn’t. It does when there’s been a huge impact on the marital estate from a financial standpoint, and quite frankly, even when there’s been a huge emotional toll which adultery is betrayal, and there’s an emotional toll. But the bigger question that what I have seen is that when it has, when the adultery is connected to the marital estate, as far as finances are concerned, that’s when it really matters more than it does otherwise.

Scott Cardani 8:35
It’s very true. I mean, they’re looking because we’re splitting and the idea is you started. You had a marriage for so long. And whatever you built in that marriage is kind of split 50/50. And then we’re looking for factors that create a different split. So if you were the one who was committing adultery versus the one who was not committing adultery, how does that play out, and the easiest way to show that is, well, he was spending money on something outside of the family. So they were taking, they were stealing not only was he stealing effects, he was stealing money basically from the family. So it’s really, really important kind of concept to wrap your mind around. And the other side of that is if you all were separate and apart even if you’re living in the same house for 10 years, and your a wife decides to get a boyfriend and starts having sex with a boyfriend and you go and hits adultery is the worst thing in the world. Quite frankly, this doesn’t have the sting.

Jackie Critzer 9:34
It doesn’t. It’s true. And I’ve been successful with post separation adultery. Being the grounds for divorce than post separation adultery is exactly what it sounds like the parties had separated, either living in the same house or not. And one spouse or the other engaged in sexual relationship with another person and that is still adultery in Virginia. And I was successful in in proving that. But, it didn’t help the case much.

Scott Cardani 10:02
Yeah, that’s a problem. And then you spend 1,000s of dollars in a private investigator proven this in the end. The split is similar, you know, are very, very similar. And, you know, the courts, I think when you try a case for the judge who’s a human, he understands that, hey, look, you all didn’t have a relationship forever, right? You know, don’t act like it’s the end of the world.

Jackie Critzer 10:24
Some people want that distinction of the divorce based on adultery for religious region reasons, or maybe for spiteful reasons. In this particular case, where I was successful in successful in showing that there was post separation adultery, unfortunately, the pendulum swung the other way, when it came to some of the equitable distribution factors. The judge, I think, thought that my client was trying to punish the wife by embarrassing her in open court and bringing her boyfriends into court. And I don’t think he liked that much. But But what happens, Scott, when your clients accused of committing adultery. How do you handle a case like that?

Scott Cardani 11:09
It’s really the same thing, it just reverse, you just have to think through those things. And you know, that you realize that somebody’s going to be watching you probably, and following you maybe, or, you know, they’re going to look into your social media accounts and your text messages account. I’m always amazed how many people put things in writing, I just to this day, it amazes me that you would be in an adulterous relationship, and you’d be texting your girlfriend, while your wife’s on the couch beside you and thinking that’s gonna just disappear when you hit delete. As we know, it doesn’t disappear. It does not disappear. No. So all those things, I mean, you just become under, quite frankly, under investigation, so to speak, and all your words, all your actions, your social media, everything is open, and discoverable. And able to get in, especially nowadays. I mean, there’s a real, we’ve covered this on other podcasts. But there’s a real misnomer in our culture, that if I use Snapchat, for instance, when I snap that chat, it’s gone. And it’s just not. And, you know, good forensic people can pull a lot of stuff up. I mean, I had one case where years and years and years, 10 years ago, some looking at a porn picture was able to be put back together, you know, kind of thing, not that it mattered at the time. But I mean, just saying there’s ways to get stuff and carving it out, they call it and they just put things back together. And there’s meta data and all this garbage that we don’t need to spend time on. But the bottom line is, for me is when you’re the adult or you’ve been accused of adultery, you have to realize there’s a high price to pay, and there’s a lot of hurt pain and turmoil that’s coming down the road. And, you know, I’m not going to advise you not to live your life. But at the same time, you got to realize that these are very serious issues, the best thing you can do if you found that you are no longer happy in your marriages, and your first marriage and enter the second marriage the right way.

Jackie Critzer 13:05
And how often do you have I don’t think I ever do or maybe rarely do how often do you suggest that your client admit that they’ve committed adultery?

Scott Cardani 13:18
I didn’t one case, I think it was appropriate. And it was more of a post separation adultery kind of thing. But so you know, they’re they’re still book crime on the books, right?

Jackie Critzer 13:30
It’s still a misdemeanor, right?

Scott Cardani 13:31
It’s still a crime. But so you can always plead the fifth, which is what we always tell our clients to do is, you’re right not to incriminate yourself. So you don’t have you same thing we talked about in our criminal law cases, you don’t have to tell your story. You don’t have to give the information. So you can say I plead the fifth. And that keeps the conversation down. You don’t have to admit that you did anything wrong, and you never should really well.

Jackie Critzer 13:54
But asserting that fifth amendment privilege is really key. And as a skilled attorney is going to be able to tell you when and how. Versus an unskilled or maybe lazy attorney who forgets how to assert that privilege that it is a difference and a distinction. Because when you assert that privilege you don’t get it’s not the Hokey Pokey. You can’t be in and out a little bit. That’s exactly what I was gonna say, right? You’re either you either were asserted, or you don’t. And I actually called an attorney out not long ago, who had denied adultery and then tried to assert the Fifth Amendment privilege and discovery. And he said, Oh, no, I’m sorry. You’re right. Maybe he was being late. I’m not sure what it was. But I didn’t let him get away with it. I mean, he’d already denied and once you denied the doors open, right, you have to assert it from the beginning, but you need to talk to an attorney who knows the ins and outs of how to assert that fifth amendment privilege. But what is the case law now about asserting your fifth amendment privilege? Let’s say you found an attorney like us here at Critzer Cardani. And you’ve asserted your fifth amendment privilege successfully. What is a judge a lawyer To interpret based on that assertion?

Scott Cardani 15:03
I guess he’s allowed to interpret some things, isn’t he?

Jackie Critzer 15:06
In the civil matter, he is allowed to infer whatever is being accused, essentially.

Scott Cardani 15:17
Yeah, so it’s a really difficult thing. And I don’t think judges are taking that so far and really running with it, they kind of have historically stayed on the fact that if you don’t prove it, you don’t prove it. But that’s out there. And that’s a big problem. So, and even like Jackie said, in your fifth amendment, asserting it, it’s not like I did this, this, this, this. But I didn’t sleep, whether that’s not asserting your fifth amendment privilege. So you really need help. You really need somebody involved with your case, if you’re being accused of adultery. And the worst one is, is when you haven’t committed adultery, and you’re being accused of it, which happens quite often, we see just a ton. You know, just because you’re accused of it doesn’t mean you’re guilty, and you shouldn’t have to pay a price just because somebody wants to get in court quicker or whatever. And that’s often used as a tool against people. So, you know, again, don’t put yourself in compromised positions, don’t flirt with the lady down the street and do stupid stuff. You know, if you’re unhappy in your marriage, my suggestion is you deal with that unhappiness. Hopefully, you’ll go to a counselor and try to work it out. But you know, the worst thing you do is work it out with your next door neighbor.

Jackie Critzer 16:29
Or anyone else. Last thing, what about the the boyfriend or girlfriend, right? So you’ve got your spouse? And let’s say we represent the person who’s accusing the husband of cheating. what point do you ever have you ever gone after the girlfriend or the person that they were cheating with? Have you ever tried to depose them?

Scott Cardani 16:51
That happens all the time. I mean, I just had one recently in the deposition of the girlfriend or whatever. And that can be problematic in itself, because she’s gonna have to hire your own lawyer. We can’t advise her what to say or what not to say. So becomes a big cabal that way. And you know, she may want to admit it. She may like that she’s in an adulterous relationship interview. And that happens a lot where people I almost I don’t know if jealousy is the right word, but it’s some kind of weird thing. And I’ve seen many times the witness being deposed. Do you get blindsided by? Yes, we had sex. We had sex on Monday and Tuesday and Wednesday and Thursday, and you’re like, you’re sitting there, like, guests are fit demand privilege just went out the door. So, you know, those are all problems you don’t really know. But they’re definitely, almost always going to be deposed or brought to court or something.

Jackie Critzer 17:46
But they are accessible, I think is the main thing, right? They’re accessible. They can be subpoenaed to court, they can be subpoenaed to a deposition. And and I’ve defended a pair more before in a deposition. And I think I think a lot of us have, but just keep in mind that your partner or partners that you are having an affair with or affairs with can be reached by proper process.

Scott Cardani 18:10
And that can create some really uncomfortable situations to say the least.

Jackie Critzer 18:15
For sure. Scott, our three takeaways today on the subject of adultery?

Scott Cardani 18:19
Well, I think number one is you need to get and with an attorney, as soon as you either you’re being accused, or you’re the you believe that your spouse is having an affair. First things first, you need to get somebody who can help you walk you through the beginning process, help take out the emotion of it and figuring out what you need to do next, and what you what’s your steps, and maybe that’s hiring a private investigator, maybe it’s not so well be your second one, Jackie?

Jackie Critzer 18:45
The second one is when and why does it matter? And and really seeking the right counsel to tell you when, when and why it does matter. And sometimes it doesn’t matter. From a legal perspective, it matters to a personal perspective. And sometimes the people want to spend the money on that. That’s okay. As long as your attorney is being forthright with you and telling you that your your goals of just exposing this person may be the only thing you get and not a financial gain at the end of the divorce.

Scott Cardani 19:12
And I think the last one is how to how and when and what to do as far as your fifth amendment privilege, and how to how to exercise that what to do when but again, I highly advise getting legal advice because each one of those situations. You know, what we believe here at Critzer Cardani, is we want to craft that unique position for you. Because every case that walks in even though it’s another adultery case, there are facts and circumstances and everything like that that makes your case unique. And you need somebody who’s going to listen to your situation so you can get the best legal advice possible.

Jackie Critzer 19:49
Absolutely. Well that wraps our docket for today. Thanks for tuning in. Be sure to find us and subscribe to us on your what however you listen or watch your podcast.

Scott Cardani 19:59
Thank you.

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