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 In the unpublished case of Garrett v. Garrett, Record No: 1440-16-4 (Va.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.