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Deshabille dooms divorce defense

It’s tough to prove adultery as a ground for divorce in Virginia.

It helps to catch the wayward spouse emerging from his girlfriend’s home in his underwear.

In Toth v. Toth (VLW 008-8-071), a Fairfax Circuit Court said a wife proved adultery with evidence from a private investigator who observed the husband grocery shopping with his alleged paramour, coming and going from her home, staying late, and twice emerging from her home partially dressed, once in pants and no shirt and once in a t-shirt and boxer shorts.

As Judge Michael McWeeny recounted, the husband and his girlfriend went into her home at 5:54 p.m. on Sept. 3, 2006. Less than 45 minutes later he was seen coming out in only tee-shirt and boxer-style underwear. His wife “confirmed and identified the clothing as his underwear,” wrote the judge.

The husband took the Fifth.

Although the husband hadn’t appeared in the all-together, McWeeny put it all together and said the wife’s circumstantial evidence proved adultery.

What difference did it make? The husband, who was retired, wanted spousal support, but the court denied that request.

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