What Are The Penalties for Perjury in Family Law Cases in Virginia?
Is there perjury in family law? People do lie in court. I was astonished to learn this after law school. But it’s true. People lie in court all the time – about income, assets, child abuse, domestic violence. The problem in divorce and family law cases is that it’s hard to prove a person is lying. Judges must rely on evidence properly presented in the case, and usually that evidence is what we call “he said, she said” evidence. Without anything else to support either party’s side, a judge has to decide which of the two is more credible. Sometimes they get it right, and sometimes not.
How can you prove someone is lying in court? The best way is to have a court reporter and then you are able to examine testimony and documents for contradictions. Especially when there is more than one hearing, when a party’s “story” changes over time, often lawyers will use that to show he or she is lying. Showing the person has lied and showing the person has committed perjury is not the same thing.
Let’s look at what perjury is and what is required to prove it in court. Perjury is defined as willfully giving incomplete, misleading, or false testimony while under oath, whether in court or in a sworn written statement. The general perjury statute in federal law calls for a prison sentence of up to five years. In Virginia, it’s a Class 5 felony which carries a one to ten year jail sentence.
To be convicted of perjury, two elements must be shown. The first element is intent. To find the person guilty of perjury, it must be proved that he or she intended the lie, knew he or she was lying, and it wasn’t a mistake or accidental. If the person believes what they are saying is the truth, which is more often than not the case in family law, then they have not committed a crime. The second element is that the lie told must be relevant to the issues to be decided. If there is a lie, but it doesn’t relate to the issues before the court (such as their age), then this is not perjury. It may reflect badly on the person and on their overall credibility, but it is not perjury.
So are there penalties for perjury in family law cases in Virginia? The bottom line is that perjury is rarely, if ever, prosecuted in a Virginia family law case. In Virginia, these cases have to be brought by the Commonwealth’s Attorney as they are criminal proceedings, so the first step would be to get the Commonwealth Attorney’s office involved and ask them to initiate prosecution. Because these cases are so difficult to prove, this is unlikely to happen.
Unfortunately our adversarial process in divorce encourages lying. After all, winning is the goal, and some will do whatever it takes to win. What can be done? Removing a case from our adversarial system and using a settlement process like mediation or collaboration is an obvious and sensible answer. Understanding how our system encourages lying in court and choosing another way of resolving family law issues makes good sense, especially when it comes to families and children.
If you have questions about penalties for perjury in family law cases in Virginia or any other family law topic, please call my office for an appointment at 434-845-2463.