Virginia Code
Va. Code Ann. § 8.01-223.1 (2026)
Use of constitutional rights
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In any civil action, the exercise by a party of any constitutional protection shall not be used against him, except that in any civil proceeding for spousal support, custody, or visitation under Title 16.1 or any civil action for divorce or separate maintenance under Title 20 filed on or after July 1, 2020, if a party or witness refuses to answer a question about conduct described in subdivision A (1) of § 20-91 or in § 18.2-365 on the ground that the testimony might be self-incriminating, the trier of fact may draw an adverse inference from such refusal.
1985, c. 192; 2020, c. 1062.
Notes of Decisions
Cited in 15
cases (3 in the last 5 years), 1988–2026 · leading case: Travis v. Finley, 548 S.E.2d 906 (Va. Ct. App. 2001).
Travis v. Finley, 548 S.E.2d 906 (Va. Ct. App. 2001). “She argues, pursuant to Code § 8.01-223.1, 2 the assertion of her Fifth Amendment privilege against self-incrimination is not a proper basis for dismissing her petitions.”
Watts v. Watts, 581 S.E.2d 224 (Va. Ct. App. 2003). “Although husband invoked the Fifth Amendment when asked during deposition testimony whether he and Glass engaged in intercourse, we make no negative inference based on his exercise of the privilege.”
Romero v. Colbow, 497 S.E.2d 516 (Va. Ct. App. 1998). “See Code § 8.01-223.1. Therefore, the evidence “as a whole” justifiably raised suspicion; but it did not equate to clear and convincing evidence of adultery.”
Leitner v. Leitner, 11 Va. Cir. 281 (Fairfax Cir. Ct. 1988). “Code § 18.2-365. Mrs. Leitner maintained that he waived his constitutional right by denying adultery and affirmatively alleging his faithfulness.”
Ungaro v. Quality Sys. Assocs., 45 Va. Cir. 204 (Fairfax Cir. Ct. 1998). “They state that Va. Code § 8.01-223.1 2 does not apply, and that even if it does, it must be construed to conform to the common law because any other interpretation would eliminate the common law doctrine of “sword and shield.”
Joshua Dean Drenth v. Elizabeth Anne Drenth, No. 0388224 (Va. Ct. App. Dec. 20, 2022). “However, it did amend Va. Code Ann. § 8.01-223.1 so as to allow a court to draw an adverse inference whenever a party asserts the 5th amendment in any case for custody, visitation, support, divorce, or separate maintenance.”
Murphy v. Murphy, 36 Va. Cir. 96 (Fairfax Cir. Ct. 1995). “Va. Code Ann. § 8.01-223.1 (Repl. Vol. 1992).”
Hicks v. Been, 57 Va. Cir. 151 (Va. Cir. Ct. 2001). “” As was discussed above, striking Defendant’s pleadings in the manner requested by Plaintiffs would have the effect of penalizing him for exercising a constitutional right, which is prohibited by § 8.”
Xinic v. Quick, 69 Va. Cir. 295 (Fairfax Cir. Ct. 2005). “” Va. Code Ann. § 8.01-223.1 . II. Bank Account Information Interrogatory number four requests Plaintiff to provide all accounts with financial institutions including account numbers.”
Pelliccia v. McKeithen, 59 Va. Cir. 483 (Va. Cir. Ct. 2002). “However, Code of Virginia § 8.01-223.1 states, “[i]n any civil action the exercise by a party of any constitutional protection shall not be used against him.”
Alberto Manuel Mireles v. Morgan Hornsby Mireles, No. 0935241 (Va. Ct. App. Oct. 7, 2025). “See Code § 8.01-223.1 (“[I]f a party or witness refuses to answer a question about conduct described in subdivision A (1) of § 20-91 [grounds for divorce] or in § 18.”
James A. Cox v. Melissa A. V. Cox, No. 1464242 (Va. Ct. App. Feb. 3, 2026). “See Code § 8.01-223.1. Wife also testified that her new hourly rate as a pharmacist would be $62 an hour, resulting in an annual income of $128,960 if she was employed full-time.”
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