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When does Adultery Bar the Right to Spousal Support in Virginia?

16th November 2011
By Marilyn Ann Solomon in Legal
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In Virginia, a spouse is often entitled to spousal support when the other spouse makes significantly more gross income. A rule of thumb is that if one spouse makes 70% or more of the amount earned by the other spouse, there is generally no spousal support awarded. If they make less, than the spouse earning less income can be entitled to spousal support.
Virginia recognizes three types of spousal support: pendent elite, temporary, and permanent. Pendente lite spousal support is spousal support awarded while a trial is pending or after separation and before divorce. Temporary support is also known as defined duration support and can be awarded for up to 50% of the time the parties were married and together. Permanent support is just what it sounds like: permanent or until one of the parties dies or the one receiving spousal support remarries or cohabitates with another person for over a year. Pendent elite is calculated based on a formula (usually the Fairfax Guidelines) while temporary and permanent support is not. Adultery can be a bar to most types of spousal support although not usually pendente lite.

Virginia Code § 20-107.1(B) provides that "no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse's favor a ground of divorce under the provisions of subdivision (1) of § 20-91," which includes adultery. The bar, however, is subject to one exception: that the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.
As the Court noted in Congdon v. Congdon, 40 Va. App. 255, 263 (Va. Ct. App. 2003), the language of the statute limits the scope of the exception significantly. First, the evidence must rise to the level of "clear and convincing" proof. Such a standard requires "that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established." Lanning v. Va. Dept. of Transp., 37 Va. App. 701, 707, 561 S.E.2d 33, 36 (2002) (citations omitted). Second, the exception requires "manifest injustice," which should only be interpreted to mean such severe and unforeseen results from divorce as to render complete devastation to one party. Third, the statute limits the fact finder's discretion to two specific variables: (i) the relative degrees of fault and (ii) the economic disparities between the parties. The statute requires the decision to be "based upon" these factors. Code § 20-107.1(B). "This language implies a higher level of justification than a statutory command that merely requires the trial judge to consider this or that factor." Congdon at 264.

There are three recent cases which address the circumstances under which an award of spousal support should be awarded to an adulterous party. The first of these is Barnes v. Barnes, 16 Va. App. 98, 101-03, 428 S.E.2d 294, 298, 9 Va. Law Rep. 1077 (1993). Prior to the parties’ marriage, the husband had become president of an insurance adjuster's firm in which he owned a forty percent interest. The wife did not participate in the business or hold any other job outside the home, but she did accompany her husband to conventions and hosted social gatherings to entertain his clients. The husband was earning $ 93,750 per year, compared to the wife's income of approximately $ 140 per month. The wife's expenses were approximately $3,390 per month and the husband had accepted her "style of life as consistent with his view of what the role and function of his wife should be." Id. at 104. In the divorce proceedings, the wife complained that her husband often made demeaning and humiliating remarks about her in the presence of others. The husband filed for divorce on the grounds of adultery. The Court found that the parties’ marriage disintegrated because of the "mutual inattention and fault of both parties" and that the wife's post-separation adultery occurred long after the marriage had been "irretrievably lost." Id. at 102. In light of the "extreme disproportionate economic circumstances of the parties and their mutual fault," the Court held that spousal support was necessary. Id. at 104.
The second case is Calvin v. Calvin, 31 Va. App. 181 (Va. Ct. App. 1999). The commissioner found that the wife in that case was "vindictive and cruel, that she destroyed the couple's property at the husband’s expense," and that she committed adultery. Id. at 183. The wife sued for divorce on the ground of desertion. On the husband’s appeal of spousal support awarded to the wife, the commissioner reported that the award was justified on the wife’s extremely poor health. "Given [her] medical history, her current medical condition which requires continued medical treatment, her lack of health insurance, and the fact that [the husband] has almost wholly supported her during the marriage", the commissioner found that a denial of spousal support would constitute a 'manifest injustice' under Code § 20-107.1." Id. at 184. The commissioner recommended an award over a three year period to provide the wife with "funding sufficient to cover her medical expenses and adequate time in which to procure medical benefits and full time employment." Id.
Finally, in Congdon v. Congdon, 40 Va. App. 255 (Va. Ct. App. 2003), it was held that an award of spousal support was justified despite the wife’s adultery during the marriage. The evidence showed that the wife was engaged in an extramarital affair for at least five years during the marriage. The evidence portrayed the husband, however, as a profane and verbally abusive man. He frequented strip joints and topless bars and would routinely engage in conversations about them in the presence of his family. The husband even directed his profanity toward his children. Id. at 259. The husband had a college degree, a stable career with an annual salary exceeding $250,000, and additional income from corporate dividends and family related gifts. His interests in stocks, real estate, and tangible assets exceeded $ 6 million. In contrast, the wife had not held a full time job for almost twenty years and had no college degree. At the time of trial, the wife was earning $10.00 an hour as a receptionist. Based on this disparity, the court found it was a manifest injustice to deny spousal support. To avoid the issue and assure payment of spousal support, a person wanting spousal support should avoid committing adultery as it may cost her (or him) the right to that support.

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