Adultery in Divorce Law in Virginia

While attempts to repeal the crime of adultery in Virginia have repeatedly failed, the Virginia General Assembly did revise Virginia Code Section as follows:

§ 8.01-223.1. Use of constitutional rights.

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.

The enrolled Bill was approved by the Governor on April 10, 2020, and will become effective July 1, 2020. Virginia Code Section 20-91(A)(1) provides for the fault ground of adultery, sodomy and buggery for a divorce. Virginia Code Section 18.2-365 defines adultery and makes it a Class 4 misdemeanor.

Virginia now allows an adverse inference to be drawn from pleading the 5th in a civil proceeding for divorce, separate maintenance, spousal support, child custody, and child visitation. This change in the law brings Virginia closer in line with the majority view of states in the United States, which allow an adverse inference to be drawn from a person’s exercise of his 5th Amendment privilege against self-incrimination in a civil case.

No, as the case of Giraldi v. Giraldi, 64 Va. App. 676, 771 S.E.2d 687 (Va. App. 2015) demonstrates, where the Virginia Court of Appeals reversed the trial court’s reservation of spousal support as an abuse of discretion.

The parties were married for twelve years before they separated.  Wife began having sexual intercourse with her paramour over a six month period during the eleventh year of the marriage.  Wife complained that husband travelled too much, ignored her, and did not provide emotional support.  Husband complained about frequent arguments with wife, and an incident with wife locking him in the walk-in closet and threatening to call the police with a false report of family abuse.

At trial, wife and her paramour admitted to the adultery during the marriage.  The evidence showed husband had monthly income of more than sixteen thousand and wife had monthly income of more than three thousand as a school teacher.  The court recognized that wife’s behavior was unacceptable, but nevertheless reserved spousal support for either party for a period of six and one half years under Virginia Code Section 20-107.1.  Husband appealed the case based on the trial court’s failure to find clear and convincing evidence that a denial of spousal support would constitute a manifest injustice.

The Virginia Court of Appeals reversed and remanded the case based on the trial court’s abuse of discretion.  The appellate court recognized that spousal support is within the discretion of the trial court, citing Northcutt v. Northcutt, 39 Va. App. 192, 571 S.E.2d 912 (2002), and an award would not be disturbed absent an abuse of discretion, citing Fadness v. Fadness, 52 Va. App. 83, 667 S.E.2d 857 (2008).  Further, a trial court’s abuse of discretion can be based on making an error in law.  Porter v. Commonweath, 276 Va. 203, 661 S.E.2d 415 (2008).

Here, the record was devoid of any consideration by the trial court of whether there was clear and convincing evidence that it would be a manifest injustice to bar support based on both the parties’ respective degrees of fault and the parties’ relative economic circumstances.  The trial court did not mention the two factors, any fact findings with respect to these factors, or wife’s burden of proving a manifest injustice by clear and convincing evidence.  The court mentioned shared fault with respect to child custody in ways there were not favorable to wife, but did not compare the respective degrees of fault of the parties for spousal support.  Similarly, while the court considered the parties’ finances, it did not consider the differences between the parties’ economic circumstances, as was necessary to find a manifest injustice.  Again, the evidence on finances was not particularly supportive of the required finding for a manifest injustice as wife had a secure job with minimally adequate income to support herself, while husband’s future employment was uncertain.

The Virginia Court of Appeals resorted to a legal dictionary in ruling that a manifest injustice could not be speculative, citing Black’s Law Dictionary definition of “..direct, obvious and observable…”.  The court also reaffirmed that clear and convincing evidence must be that “measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established”, citing Seemann v. Seemann, 233 Va. 290, 355 S.E.2d 884 (1987).  Beyond the deficiencies in the record, even when the evidence in this case was viewed in the light most favorable to wife, it could not satisfy the clear and convincing standard for a manifest injustice.

You should consult with your Virginia divorce attorney or Glen Allen divorce lawyer James H. Wilson, Jr., concerning the potential consequences of adultery in your marriage.

Did wife waive her 5^th Amendment privilege against testifying about her adultery and was husband’s stock purchase agreement properly classified as hybrid property?

Yes, in the case of Allen v. Allen, Record No: 0562-16-4 (Feb. 2017), where the Virginia Court of Appeals ruled wife waived her privilege by claiming to be a good and faithful wife and husband’s stock purchase was treated as a deferred compensation plan.

The parties were married for almost fourteen years before separating.  One child was born of the marriage.  Husband invented an app to add recipes to shopping lists five years before they separated.  He attracted investors and later sold all the stock in the companied he formed to market the app to Conde Nast and became employed as its seller representative under a noncompete clause.  The stock for husband’s start up business sold for over 12 million dollars with a manager’s carve out, although the company had a negative book value.  Husband satisfied the terms of his contract with Conde Nast and received payments for the stock it purchased over a period of four years, including two which were paid after the parties separated.

Husband and wife entered into a written separation agreement for a no fault divorce and a pendente lite consent order under which husband paid wife spousal support of $7,000 a month.  Wife filed a motion for an alternate valuation date for the stock payments husband received after the parties separated.  Both husband and a Conde Nast employee testified about the terms and value of husband’s stock sale and employment.  The trial court judge hearing equitable distribution found all property to be hybrid property, noting husband’s required efforts at Conde Nast after separation, and awarded wife a coverture fraction to determine wife’s interest in the stock purchase payments.  The coverture fraction was based on the number of days after husband founded the company until the date of separation divided by the number of days from founding to final receipt of payment under the stock purchase agreement.  Wife was awarded $3,400 a month in permanent spousal support and $25,000 in attorney’s fees.

Wife appealed the case to the Virginia Court of Appeals, arguing that the trial court erred in awarding only a fraction of the value of the stock sale as it was entirely marital property and sold during the marriage.

The appellate court first recognized the applicable standard of review, that the evidence would be viewed in a light favorable to the prevailing party, all reasonable inferences in its favor, citing Congdon v. Congdon, 20 Va. App. 255, 578 S.E.2d 833 (2003).  The court then recognized that wife’s challenge to the classification of property in equitable distribution was a fact finding that would stand unless clearly wrong or unsupported by the evidence, citing Wright v. Wright, 61 Va. App. 432, 737 S.E.2d 519 (2013).  Here, the parties’ economic partnership ceased upon separation, as noted by the trial judge with his reliance on Dietz v. Dietz, 17 Va. 203, 436 S.E.2d 463 (1993).  The trial court reasonably found the stock purchase agreement to be a deferred compensation plan properly divided by the coverture fraction used by the trial court, even though it was atypical.  Further, the Court of Appeals recognized that the time of classification of property in equitable distribution is made at the date of acquisition, not at the date of vesting. Shuman v. Shuman, 282 Va. 443, 717 S.E.2d 410 (2011).

The appellate court also upheld the testimony of the Conde Nast employee over wife’s objection, as the employee had first hand knowledge of the terms and basis for the stock purchase agreement in her position at the company.  The trial court did not err in refusing to use an alternate valuation date for the sale of the company stock, as husband used the proceeds to pay taxes and marital debt, with each spouse receiving half of the remaining net proceeds.

Finally, the trial court properly found wife had waived her 5^th Amendment privilege against self-incrimination by testifying that she had been a faithful and dutiful wife during the marriage in response to a general question.  Even if erroneous, the finding was harmless error as her testimony was cumulative, supported by other evidence in the record.

The appellate court found no abuse of discretion in the trial court’s award of spousal support, as the judge had properly considered the factors under Virginia Code §20-107.1(E), and found wife’s expenses to be inflated.  Husband had concluded his employment with Conde Nast, and the court properly considered his severance package, the amount of debt and spending during the marriage as offsetting his previously high income.

You should consult with your Virginia divorce lawyer or Glen Allen divorce lawyer James H. Wilson, Jr., to discuss how adultery might affect the outcome of your divorce case.

Will husband’s adultery result in a less than 50% share of marital property upon divorce?

Yes, in the case of Kyger v. Kyger, Case No: CL17-2132 in the Circuit Court of Rockingham County, Virginia.  Virginia does not start equitable distribution with an even or 50-50 split of marital property, as restated in Robbins v. Robbins, 48 Va. App. 466, 632 S.E.2d 615 (2006), “Under settled principles, Virginia law “does not establish a presumption of equal distribution of marital assets.” Watts v. Watts, 40 Va.App. 685, 702, 581 S.E.2d 224, 233 (2003) (citation omitted).”  Accordingly, in the Kyger case, the Virginia Circuit Court judge divided the marital property on a 42-58% basis due to husband’s adultery, which affected his wife and their poultry business.

In Kyger, the parties were married thirty-three years before separating due to husband’s adultery.  During the marriage, they acquired substantial assets, including the marital residence and a poultry business.  While wife contributed $50,000 of her separate funds toward the improvement of what became the marital residence, she was unable to prove through tracing the existence of those funds in marital property at the time of separation.  The husband left the wife and the poultry business, which wife was unable to run on her own, in order to continue his extramarital affair with a co-worker.  The husband’s affair started while his wife was suffering from various bouts with basal cell carcinoma.  Prior to leaving his wife, husband had been engaging in sexual intercourse at different times with his wife and his paramour, unbeknownst to his paramour.  While wife desired to preserve the marriage for religious reason, she gave husband an ultimatum, which led to the separation of the parties.

At trial, the judge found the wife to be credible and accepted her appraiser’s value for the farm.   The judge found the husband was not credible and discounted his expert’s testimony on valuation due to errors in calculation. The judge found that the husband’s adultery had a direct adverse effect the poultry business, as he chose to leave the business.  The wife was awarded the martial residence and the poultry business, in return for a lump sum payment to husband from wife, while husband received mountain land.  The judge awarded wife total allocated assets less allocated debts worth $680,231.48, while husband received $498,431.93.  Splitting the difference, one could conclude that husband’s adultery cost him $90,899.78.

You should consult with your Virginia divorce lawyer or Glen Allen divorce lawyer James H. Wilson, Jr., to discuss how adultery might affect the outcome of your divorce case.

Can a Virginia court order a devoted and financially responsible husband to pay spousal support to his adulterous wife based merely on a gross disparity in income?

No, not in the case of Mundy v. Mundy, 66 Va. App. 177, 783 S.E.2d 535 (2016), where the Virginia Court of Appeals reversed the decision of the Circuit Court judge recognizing the manifest injustice exception to the bar on alimony to an adulterous spouse.

The parties were married for more than twenty-five years and husband was the primary breadwinner, earning as much as $850,000 per year.  The wife worked part time for less than a year.  The husband was a financially responsible and devoted spouse and father, who took his family on vacations and supported his spouse.  The husband treated his wife to dinners out and entertainment, and supported her interests in the arts and in a rock band. The husband provided daily care to his children and was involved in their extracurricular activities.

Wife admitted to adultery with a member of her rock band and with her personal trainer before separating and two post-separation adulterous relationships with others.

The parties entered into a property settlement agreement in which wife received assets worth $1.8 million dollars, including retirement funds.  Husband received the marital residence and agreed to pay for their children’s college expenses.  The parties did not address spousal support in their property settlement agreement, but left it for a decision by the trial court.

At trial, husband’s vocational rehabilitation expert testified to wife’s earning capacity, which would allow her to earn a sufficient income to support herself.  During closing argument, wife’s attorney admitted that there was no fault on husband’s part.  Nevertheless, the trial court judge recognized the manifest injustice exception to the Virginia bar on spousal support to an adulterous spouse due to the disparities in income of the parties.  The husband appealed the decision to the Virginia Court of Appeals.

The appellate court first recognized the standard of review.  The trial court’s fact findings would not be overturned unless plainly wrong or without evidence to support them.  Further, the appellate court recognized that undisputed or uncontradicted evidence that is not inherently incredible may not be arbitrarily disregarded by the trial court judge, citing Stroud v. Stroud, 49 Va. App. 359, 372, 641 Se.E.2d 142, 148 (2007), quoting Schweider v. Schweider, 243 Va. 245, 250, 415 S.E.2d 135, 138 (1992).

The court then recognized the bar to spousal support under Virginia Code §20-107.1(B) for adulterous conduct under Virginia Code § 20-91(A)(1), and the narrow exception to that bar for manifest injustice, which must be proved by clear and convincing evidence, Congdon v. Condon, 40 Va. App. 255, 578 S.E.2d 833 (2003), based on the respective degrees of fault and the relative economic circumstances of the parties.  The court stated that a “manifest injustice” had been found to be equivalent to a “miscarriage of justice”, citing Harris v. DiMattina, 250 Va. App. 306, 462 S.E.2d 338 (1995).

The appellate court distinguished the facts in Mundy from its decision upholding a manifest injustice in Congdon v. Condon, 40 Va. App. 255, 578 S.E.2d 833 (2003).  Both fault and relative economic circumstances must be considered together to find a manifest injustice.  In Congdon, the husband had abused the wife, his children and other family members, constituting unusual fault on husband’s part.  Further, the wife had been left with no assets and earned only $10 per hour.  In contrast, the wife in Mundy was left with assets in excess of a million dollars, had a mechanical engineering degree from Rice, and was capable of earning $27,500 to $33,000 per year.  Further, the wife in Mundy was 55 years old and would soon be able to access retirement funds.  The Virginia Court of Appeals ruled that the disparity in incomes found by the trial judge was not a sufficient manifest injustice and reversed the award of spousal support.

You should consult with your Virginia divorce lawyer or Richmond divorce lawyer James H. Wilson, Jr., to discuss how adultery might affect the outcome of your divorce case.

Does wife’s alleged prior infidelity invalidate a separation agreement incorporated into a final decree of divorce?

Not in the case of Kahn V. McNicholas, 67 Va. App. 215, 795 S.E.2d 485 (2017), where the Virginia Court of Appeals upheld the Circuit Court ruling the attorney ex-husband was in contempt of court for failing to abide by the terms of the final decree.  While the primary issue involved in Kahn is the court’s ability to hold a spouse in contempt for failing to pay a monetary obligation, the ex-husband also raised wife’s prior adultery as a defense to enforcement of the separation agreement.

In Kahn, the parties voluntarily separated after more than ten years of marriage.  The husband, a licensed practicing attorney in Virginia, drew up the written separation agreement and the final decree of divorce.  In the written separation agreement, he agreed to pay his wife $40,000 in sixteen monthly installments of $2,500 and the parties waived each’s right to spousal support.  In the final decree of divorce, husband’s monetary obligation to wife was described as spousal support in that portion of the form decree he used incorporating the language required by Virginia Code Section 20-60.3 (which is only required in orders directing the payment of spousal or child support, including one created by the incorporation of a written separation agreement).  Husband also agreed to cover wife’s insurance for the remainder of the year of divorce.

After making ten monthly payments, husband stopping making the monthly payments, claiming the agreement was invalidated by wife’s prior adultery.  Wife filed a petition for a rule to show cause, and the court summoned the husband to appear and show cause why he should not be held in contempt of court for violating the terms of the final decree.  In addition to his argument about wife’s prior infidelity, the husband argued the court could not hold him in contempt for violating a monetary obligation, citing Brown v. Brown, 5 Va. App. 238, 361 S.E.2d 364 (1987).  Further, husband alleged wife and her attorney should be sanctioned for describing the monetary obligations as support.  The court disagreed with all of husband’s arguments and gave him a month to purge his contempt by curing the default in payments.  Husband’s appeal of this order was dismissed as the order was interlocutory and not final.  After husband failed to purge his contempt, the Circuit Court judge held husband in contempt for violating both the interlocutory order and the final decree of divorce.

On appeal, the Virginia Court of Appeals recognized that the applicable standard for reviewing a trial court’s ruling that a party was in contempt of court was the abuse of discretion standard, citing Epps v. Commonwealth, 47 Va. App. 687, 626 S.E.2d 912 (2006).  In addition, the evidence would be viewed in the light most favorable to the appellee wife, who was the prevailing party, and reasonable inferences would be drawn in her favor.  Congdon v. Congdon, 40 Va. App. 255, 578 S.E.2d 833 (2003).

The Virginia Court of Appeals disagreed with husband’s arguments and upheld the trial court’s ruling of contempt of court.  The written separation agreement was properly made a part of the final decree by virtue of Virginia Code Section 20-109.1, and was enforceable as any court order, even though spousal support is different from other monetary obligations.  Alternatively, the monetary obligation could be seen as part of the final decree pursuant to the court’s authority to enter a lump sum money judgment under Virginia Code Section 20-197.3.  The appellate court held that the ruling in Brown v. Brown was superceded by amendments to Virginia’s equitable distribution statute in 1991.  Specifically, Virginia Code Section 20-107.3(K) now provides that the court has the authority to “..[p]unish as contempt of court any willful failure of a party to comply with the provisions of any order made by the court [under the equitable distribution statute]”.  The Virginia Court of Appeals disagreed with husband’s argument for sanctions, as he drafted the final decree which described the payments as support, and the characterization of the payments as support was, at worst, an inadvertent error which did not deprive husband of his ability to defend the show cause.

You should discuss any alleged violations of a separation agreement or final decree with your Virginia divorce lawyer, or Richmond Divorce Lawyer James H. Wilson, Jr.

Can a Virginia court award a legal separation based on adultery?

No, a divorce from bed and board or a legal separation may not be granted based on adultery in Virginia; adultery is only a fault ground for a full divorce, a divorce from the bond of matrimony.  In the unpublished case of Garrett v. Garrett, Record No: 1440-16-4 (Va. App. 2017), the Virginia Court of Appeals remanded a divorce case back to the trial court for a nunc pro tunc (“now for then”) order granting a divorce from the bond of matrimony for adultery, to correct what the appellate court believed was a clerical error in granting a divorce a mensa et thoro instead, a divorce from bed and board or what the court called a legal separation.

In Garrett, the parties were married for fifteen years before separating, after husband confessed to wife that he was having an affair with his ex-wife.  After the confession, husband became suicidal and checked himself into the hospital, never to return to the marital residence.  While husband was in the hospital wife removed $65,000 from the couple’s joint account.  The husband had been employed as a defense contractor making approximately $110,000 a year in salary, but had been fired due to poor job performance and missed work.  The wife filed for divorce based on husband’s adultery.  Subsequently, the wife obtained a protective order against the husband.  The husband appeared in the protective order proceeding, but did not appear for the trial on the divorce case.  The wife failed to call her corroborating witness, and husband’s counsel moved to strike wife’s case.  The divorce court judge permitted wife to reopen her case to call her corroborating witness, who she argued was not previously called due to an inadvertent mistake, even though the witness had been present in the courtroom.

Approximately two weeks after the trial, the husband moved the court to reopen the case to allow him to testify and present his evidence.  The court denied husband’s motion, based on a hospitalization due to his mental illness, as not credible.  The court granted the wife a divorce a mensa et thoro based on husband’s adultery.  Both parties appealed.  The husband based his appeal on the court’s refusal to reopen the case, its granting the motion to reopen to wife, its awarding GI Bill benefits to the wife, its imputation of income to him, its award of the $65,000 to wife, and its refusal to allow him extra time to review the final decree for errors. The wife based her appeal on the court’s granting her a divorce from bed and board instead of a divorce from the bond of matrimony based on husband’s adultery.

The Virginia Court of Appeals found there was no abuse of discretion by the trial judge in denying husband’s request for a continuance or denying his motion to reopen the case.  In contrast to husband’s motion to reopen several weeks after trial and his failure to show prejudice from a denial, wife’s motion was made immediately at the conclusion of trial and was properly granted as within the trial court’s discretion.  The appellate court did agree with husband’s argument that the trial court lacked the legal authority to award husband’s GI Bill benefits to wife, and reversed that portion of the divorce decree.

The court refused to rule on the trial court’s award of the $65,000 from the joint account to wife, because it did not rule in husband’s favor on his argument to reopen and for a continuance, but it did allow the trial court to reconsider equitable distribution based on the record, in lights of its reversal of the GI Bill benefits.

The Virginia Court of Appeals upheld the trial court’s imputation of income to husband for purposes of calculating spousal support and child support, as he was at fault for losing his job, but reversed the trial court’s award of nonmodifiable spousal support, as being in contravention of Virginia Code §20-109(A), which provides that court ordered support may always be modified.  The appellate court also reversed the trial court’s award of all of husband’s military pension to wife, as exceeding the limit of 50% prescribed by Virginia Code §20-107.3(G).

Finally, the appellate court remanded the case to correct the clerical error of awarding only a divorce from bed and board, not a full divorce, based on adultery.  Virginia has an intermediate form of divorce known as a divorce from bed and board, which does not allow the parties to remarry, but recognizes that they are no longer sharing the same bed and table.  A divorce from bed and board, filed under Virginia Code §20-95, may be filed immediately, without any minimum separation period, and only on the fault grounds of cruelty, reasonable apprehension of physical harm, desertion and abandonment.  Divorce lawyers use the divorce from bed and board in Virginia as a way to file the case right away and obtain the temporary or pendente lite relief available incidental to a divorce.  Interestingly, the Court of Appeals referred to the divorce from bed and board as a legal separation.

You should contact your Virginia divorce lawyer or Glen Allen divorce lawyer James H. Wilson, Jr., to discuss your options in the event of adultery in a marriage.

 

 

Will a court award spousal support of $12,000 a month to wife on top of a $2.5 million dollar equitable distribution award, when husband’s adultery was a significant, but not a primary cause of the end of the marriage?

Yes, in the case of Gordon v. Gordon, Record No: 2038-16-02 (Va. App. 2017), where the Virginia Court of Appeals upheld the Chesterfield County Circuit Court judge’s award of spousal support to wife in the amount of $12,000 a month, on top of a $2.5 million dollar equitable distribution award.  The husband and wife were married for twenty-seven years before separating.  One child was born of the marriage and the wife stopped working outside the home to take care of the child.  In the six years before the equitable distribution hearing, the husband earned between $360,000 to $900,000 per year as a financial advisor.  Nevertheless, the family lived well below its means on approximately $9,000 a month, and managed to amass marital assets of approximately $4.5 million dollars.

At trial, husband’s vocational expert testified that the wife was capable of making between $24,000 to $29,000 a year.  The husband’s financial advisor expert testified that wife could expect to receive $65,000 a year, after taxes, from a potential recovery of $1.5 million dollars in equitable distribution.  Wife’s expert witness CPA testified that wife would have to pay income taxes of $4,678 on spousal support of $15,000 a month.  The wife’s evidence showed monthly living expenses of $28,578, while husband’s evidence of wife’s expenses was only $5,867.

The trial court judge found that husband’s adultery was significant, but not the primary cause of the end of the marriage.  While the husband made the primarily monetary contributions to the family, the wife contributed to the accumulation of marital assets by agreeing to live below the couple’s substantial means and by taking care of their son and home.  The divorce judge awarded wife half the marital assets in the amount of $2.5 million dollars, plus $12,000 a month in spousal support and $35,000 for her attorney’s fees and costs.  The court did not impute income to the wife because of her long absence from the workforce, and would not consider income from her award of equitable distribution as she would have to deplete her share of marital assets while husband kept his.

On appeal, the Virginia Court of Appeals affirmed the decisions of the trial court judge and denied wife’s request of attorney’s fees and costs for defending the appeal.  The court recognized that the standard of review on appeal for an award of spousal support was an abuse of discretion, citing Fox v. Fox, 61 Va. App. 185, 734 S.E.2d 662 (2012).  To overturn such a decision, the appellate court must find that it was plainly wrong or without evidence to support it, citing Robinson v. Robinson, 54 Va. App. 87, 675 S.E.2d 873 (2009).  While the wife has the burden of proof to support an award of support, Robbins v. Robbins, 48 Va. App. 466, 632 S.E.2d 615 (2004), the appellate court will view the evidence in the light most favorable to the wife.  The Duncan appellate opinion includes the following primer on the law of spousal support in Virginia:
“In fashioning an award of spousal support, a circuit court “must consider all the factors enumerated in Code § 20-107.1(E).” Fox, 61 Va. App. at 203, 734 S.E.2d at 671. Specifically, the court “shall consider the circumstances and factors which contributed to the dissolution of the marriage.” Code § 20-107.1(E). In addition, it is required to consider the parties’ needs, financial resources, standard of living during the marriage, ages, nonmonetary and monetary contributions to the well-being of the family, contributions to each other’s careers, property interests, and earning capacities. Id. Further, the court must take into account the duration of the marriage, equitable distribution of the marital property, and “[s]uch other factors . . . as are necessary to consider the equities between the parties.” Id. However, the court “is not ‘required to quantify or elaborate exactly what weight or consideration it has given’” each of the factors enumerated in Code § 20-107.1(E). Fox, 61 Va. App. at 203, 734 S.E.2d at 671 (quoting Woolley, 3 Va. App. at 345, 349 S.E.2d at 426). “Where [an] evidentiary foundation exists and the record discloses that the trial court has given consideration to each of the statutory factors, we will not disturb its determination as to spousal support on appeal.” Id. at 203-04, 734 S.E.2d at 671.”

In considering the equitable distribution award, the appellate court first pointed out the distinction between the considerations in equitable distribution and the considerations for spousal support, that spousal support requires a consideration of the equities between the parties and the standard of living established during the marriage while equitable distribution is concerned with the acquisition, growth and preservation of marital assets, citing Lightburn v. Lightburn, 22 Va. App. 612, 619, 472 S.E.2d 281, 284 (1996) and Robinson v. Robinson, 54 Va. App. 87, 92, 675 S.E.2d 873, 875 (2009).  Here, the trial court judge did consider the earnings from marital assets, but chose to reject the expert witnesses’ testimony because it would result in a depletion of wife’s marital assets while husband retained his.  How the judge chooses to weigh the evidence he considers is not properly the subject of an appeal.

Further, the appellate court noted that the trial court judge properly considered the factors in Virginia Code Section 20-107.1(E), including husband’s adultery which was significant but not the ultimate cause of the dissolution of the marriage.  The circuit court provided the reasoning and the factual basis for its award of spousal support.  As such, the record supported the judge’s factual findings and the judge did not abuse his discretion.  The judge was not plainly wrong in failing to impute income to the wife as he considered her earning capacity, but recognized her difficulty in obtaining meaningful employment after her absence from the job market.  The appellate court disregarded the husband’s argument that the award of spousal support was excessive relative to its finding of her monthly exceptions, as his misunderstanding that an award of spousal support is solely designed to maintain the spouse at her former standard of living during the marriage, citing Robinson and Miller v. Cox, 44 Va. App. 674, 685, 607 S.E.2d 126, 131 (2005).

The lesson of the Gordon case is that divorce trial judges have a great deal of discretion in Virginia, and you take your chances when you try a divorce case.

You should consult with your Virginia divorce lawyer or Glen Allen divorce lawyer James H. Wilson, Jr., to discuss your options and the best course of action.

http://www.vsb.org/site/publications/divorce-in-virginia/

Should adultery or some other fault ground for divorce in Virginia, determine the amount and duration of spousal support or alimony?

The decision whether to award spousal support and the amount and duration of spousal support to be awarded are left to the judge’s discretion in Virginia.  The court is required, under §20-107.1(E), to consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery, conviction of a felony, cruelty, reasonable apprehension of bodily hurt, or willful desertion or abandonment.  This is a threshold determination that can affect whether a spouse is entitled to support, but that should not affect the duration or amount of support, which should be decided according to the factors numbered 1 through 13 in §20-107.1(E).  A judge must deny spousal support to the guilty spouse when the fault ground of adultery is proven, unless clear and convincing evidence demonstrates that the denial would result in a manifest injustice, as provided in Virginia Code Section 20-107.1(B).

The Virginia Court of Appeals addressed the relationship between fault and support in the unpublished case of Lothar W. Nass v. Arlene Wolin Nass, Record No. 1882-00-1 (April 10, 2001).  In Nass, the parties were married twenty years before separating.  No children were born of the marriage, or adopted.  The husband filed first for a divorce from bed and board under Virginia Code Section 20-95.  The wife filed a cross bill (now properly a counter-claim under Rule 3:9 of the Supreme Court of Virginia for divorce and equitable distribution, alleging cruelty and desertion by husband.  In Virginia, evidence in a divorce case can be presented directly to the court ore tenus or to a commissioner in chancery under Virginia Code Section 8.01-607, a quasi-judicial officer appointed by the court who can make findings of fact and report to the court, or, in some cases, though written or oral depositions.  In Nass, the commissioner found that husband was guilty of cruelty tantamount to constructive desertion and recommended a divorce a vinculo matrimonii or final divorce be entered in favor of the wife.  The husband objected to the commissioner’s report on the grounds that the parties had agreed, during the hearing, to proceed on a no-fault, one year separation, basis, as permitted by Virginia Code Section 20-121.02.  The Virginia Circuit Court overruled husband’s objection granted the wife a divorce on the grounds of desertion and denied husband’s request for spousal support.

On appeal, the Virginia Court of Appeals reversed the trial court’s ruling with respect to the divorce based on constructive desertion, holding that the record demonstrated that husband had validly moved the court for a no-fault divorce under Section 20-121.02 and the evidence supported the relief he requested.  The Virginia Court of Appeals remanded the case to the trial judge to enter a divorce based on living separate and apart for a year, instead of the fault ground of constructive desertion in favor of the wife.

With regard to spousal support, the appellate court first recognized that “[w]hether and how much spousal support will be awarded is a matter of discretion for the trial court”, citing Barker v. Barker, 27 Va. App. 519, 500 S.E.2d 240 (1998).  The Virginia Court of Appeals then noted that under Section 20-91(A)(9)(c), the entry of a no fault divorce decree does not lessen the obligation of either spouse to support his or her spouse, unless the spouse proves the existence of a fault ground in his or her favor.   The court further noted that the spousal support section, Section 20-107.1, did not specify how fault grounds were to be considered in making the threshold determination of whether spousal support would be appropriate.  If an award of spousal support were appropriate, then the trial court should consider the factors listed in Section 20-107.1(E).  In this case, the Virginia Court of Appeals found evidence in the record of husband’s egregious conduct toward wife, thus justifying the divorce court judge’s ruling that husband was not entitled to spousal support.

You should consult with your Virginia divorce lawyer concerning whether any fault grounds would prevent you or your spouse from obtaining spousal support.