Adultery in Divorce Law in Virginia

Does a Virginia equitable distribution award to wife based on husband’s adultery, drinking, gambling and verbal abuse require a showing of adverse economic impact?

Not in the case of Attiliis v. Attiliis,  where the Virginia Court of Appeals ruled that husband’s drinking, adultery, gambling and verbal abuse constituted negative nonmonetary contributions to the well-being of the family entitling wife to a Virginia equitable distribution award of $65,000 without a showing of adverse economic impact , citing Watts v. Watts, 40 Va. App. 685, 581 S.E.2d 224 (2003) .

In Attiliis, the Virginia Court of Appeals addressed four equitable distribution decisions of the trial court: the distribution of a capital loss carry-forward tax credit; an order to maintain wife as a beneficiary on husband’s life insurance; an award to wife for waste, dissipation of assets, and negative non-monetary contributions; and a finding that husband’s adultery was the primary cause of the dissolution of the marriage.  The Virginia Court of Appeals first restated the rule that it will not reverse the divorce court’s discretion in fashioning an equitable distribution award unless it appears from the record that the divorce court abused its discretion, failed to consider or misapplied the factors in the equitable distribution statute, Virginia Code Section 20-107.3(E), or made essential fact findings unsupported by the evidence.

The Virginia Circuit Court in the Attillis case was reversed on its findings with respect to a $75,000 long-term capital loss carry forward and a $40,070 short-term capital loss carry forward as unsupported by the evidence at trial.  Although Wife had listed a $75,000 capital loss shown on tax returns as an asset on a list of assets in evidence, Wife offered just the couple’s 2005 tax return into evidence, which did not reveal the disputed $75,000 capital loss tax credit.  Further, Wife’s attorney did not cross-examine Husband with respect to the exact amount of the capital loss tax credit when he denied the $75,000 figure, and conceded in his closing argument that Wife was claiming half of a $37,070 capital loss carry forward.

The Circuit Court was also reversed on its ruling that husband was required to maintain wife as a beneficiary on his life insurance policy as without statutory support in Virginia Code Section 20-107.3(G)(2).  Although Virginia Code Section 20-108.1(D) allows a court to order a party to maintain an existing life insurance policy with a child as the beneficiary in a child support proceeding for the duration of a child support obligation, and Virginia Code Section 20-111.1 provides that an existing written contract with a revocable death benefit is revoked upon entry of a divorce decree, unless the parties’ contract or the divorce decree provides otherwise, nothing in the Virginia Code allows a judge to order a spouse to maintain life insurance for the other spouse’s benefit.

With respect to the divorce court’s findings and rulings on waste, dissipation of assets, and negative non-monetary contributions, the Virginia Court of Appeals first reversed the Circuit Court’s equitable distribution award for waste of a bank account following execution of the couple’s separation agreement because the award did not account for husband’s half interest in the wasted funds and thus was unsupported by the evidence.  The court next reversed the divorce court’s award of $50,000 for dissipation of assets as without supporting evidence because waste and dissipation of assets are the same thing and do not occur over the course of the marriage, but instead only while the marriage is undergoing an irreconciliable breakdown.  Finally, the Virginia Court of Appeals upheld the divorce court’s award of $65,000 for husband’s adultery, drinking and verbal abuse because the trial court’s considerations of non-monetary contributions to the well-being of the family do not require a showing of an adverse economic impact, as contended by Husband.

The Virginia Court of Appeals ruled that husband had waived his argument that the circuit court erred in ruling that Husband’s adultery was the primary cause of the dissolution of the marriage because Husband failed to cite legal authority in support of his argument in his appellate opening brief as required by Rule 5A:20 of the Rules of the Supreme Court of Virginia.

You should consult with your Virginia divorce lawyer concerning the likely effects of spousal misbehavior on an equitable distribution award.

When a Virginia divorce is based on adultery, would it be a manifest injustice to deny spousal support to a wife who is still living with her paramour and their son?

Not according to the City of Salem, Virginia, Circuit Court judge in the case of Carter v. Carter , Case No: CL09-524, who denied permanent spousal support or maintenance to the wife who was guilty of adultery and continued to live with her paramour and their child.  While the case does not directly concern bankruptcy law, it does highlight some of the financial repercussions of the fault ground of adultery in a Virginia divorce case.  Under Virginia Code Section 20-107.1, a Virginia divorce court judge shall not award permanent maintenance or support to a guilty spouse when the fault ground of adultery, sodomy or buggery committed outside the marriage exists, under Virginia Code Section 20-91(1), unless the denial of support and maintenance would constitute a manifest injustice, as shown by the higher civil burden of proof of clear and convincing evidence.  The divorce court trial judge would examine the respective degrees of fault during the marriage and the relative economic circumstances of the parties in determining whether such a manifest injustice would result from a denial of alimony or permanent spousal support.

In Carter, the couple were married for sixteen years and had seven children before separating.  The wife had worked prior to the marriage, but did not work outside the home after the marriage.  Both parties were deeply involved with their church and the wife had home schooled the children.  The evidence indicated that the husband abused his role as the spiritual head of the household (in accordance with the parties’ religious beliefs) by belittling his wife and treating her as a child, strictly limiting her budget and holding her accountable for all her spending.  The wife tired of the husband’s neglect and controlling treatment of her and withdrew from the marriage, concentrating on raising her children.  She contacted an old boyfriend through the internet and began going out at night to meet him.  The husband became even more controlling, taking the wife’s cell phone and her car keys from her.  The wife eventually left the marital residence to live with her paramour, with whom she had a child.

The Virginia Circuit Court judge appointed a guardian ad litem to represent the interests of the minor children of the parties in the custody dispute portion of the divorce case.  The report of the guardian ad litem reflected the different views of the husband and the wife toward the marriage, which the husband found fulfilling and the wife found stifling.  The Circuit Court judge held that the wife’s adultery was the legal fault for the divorce of the parties and a negative non-monetary contribution to the marriage.  While the trial judge noted that the adultery was the result of mental neglect, domination and control by the husband, he concluded that those factors did not authorize the adultery.  The judge found the wife to be the more credible party based on the parties’ testimony, but he nevertheless awarded physical custody of the minor children to the husband and denied permanent spousal support or maintenance to the wife.  In equitable distribution, the judge did award a higher portion of the equity in the marital residence to wife rather than husband.

In denying spousal support to the wife, the judge stated that he was bound by the dictates of §20-107.1 of the Code of Virginia, and concluded that no manifest injustice would result from a denial of alimony, without revealing the factual support for that conclusion.  Although the wife had stayed at home to take care of the children for the entire duration of the marriage, the judge did impute income to her at the minimum wage in calculating child support, indicating his belief that she could or should be working now.  The fact that she was still living with her paramour would suggest that she was not without support.  One could reasonable assume that as the judge concluded that the fault ultimately rested on wife’s adultery and her financial circumstances did not leave her destitute, it was not a manifest injustice to deny permanent spousal support to her.

You should discuss with your Virginia divorce lawyer or Richmond divorce lawyer James H. Wilson, Jr., whether the marital fault of adultery might result in a denial of permanent spousal support or alimony in your Virginia divorce case.

Will a separation agreement challenged as fraudulent and unconscionable be upheld in a Virginia divorce brought on grounds of adultery?

Not in the case of Derby v. Derby, 8 Va.App.19, 378 S.E.2d 74 (1989), where the Virginia Court of Appeals affirmed the trial court’s findings that the allegations of adultery were sufficient to support a divorce on those grounds and that the separation agreement should be set aside as invalid.

George and Sandra Derby were married on April 19, 1961, and during their twenty-two years of marriage, the parties had two children. On October 6, 1983, Mrs. Derby filed for divorce, claiming cruelty, and Mr. Derby filed a cross-bill alleging adultery on several specified occasions. Approximately ten months after filing for divorce, Mrs. Derby went to the beauty shop owned by both her and her husband. She brought a copy of a settlement agreement her lawyer had drafted, providing for equal distribution of the parties’ assets.  Mrs. Derby, however, called her husband into the parking lot. After a brief discussion, Mr. Derby signed the agreement with a revision granting Mrs. Derby the majority of the parties’ property assets, including all of the parties’ real property. Mr. Derby alleged he signed the agreement while under the impression that if he did so, Mrs. Derby would return to the family home.

In the lower court proceeding, the Court held that the private investigator’s findings of adultery were sufficient to grant a divorce on those grounds but held that the property settlement as invalid. Mrs. Derby challenged the invalidation, arguing that Mr. Derby did not demonstrate fraud, duress, or undue influence by clear and convincing evidence.  To determine whether this invalidation was proper, the Court examined Virginia Code §20-109.1, which states, “[A]ny court may affirm, ratify and incorporate by reference in its decree dissolving a marriage or decree of divorce whether from the bond of matrimony or from bed and board, any valid agreement between the parties.” At issue in this case was the question of validity, which the Court addresses prior to incorporation in the divorce decree unless otherwise uncontested by the parties. See Forrest v. Forrest, 3 Va.App.236, 349 S.E.2d 157 (1986).

The trial court held that the separation agreement should be declared invalid on the basis of constructive fraud. Constructive fraud requires, “[B]reach of legal or equitable duty which, irrespective of moral guilt, is declared by law to be fraudulent because of its tendency to deceive others or violate confidence.” Wells v. Weston, 229 Va. 72, 77, 326 S.E.2d 672, 275-6 (1985). Here, the lower court ruled that Mrs. Derby’s actions of hiding her adultery from her husband and having him sign the agreement knowing he was fostering ideas of her return constituted constructive fraud; however, the Court of Appeals disagreed, stating that the fiduciary duty between the parties was severed by the separation and retention of attorneys, and, therefore, Mrs. Derby’s actions did not breach any duty. See Barnes v. Barnes, 231 Va. 39, 42, 340 S.E.2d 803, 804 (1986) (holding that when a husband and wife separate and employ attorneys, their former confidential and fiduciary relationship ends).

After examining the issue of fraud, the Court turned to whether the separation agreement should be set aside on the issue of unconscionability, which according to the Restatement, means the agreement “was such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.  Restatement (Second) of Contracts § 208 comment b.  In cases of unconscionability, the court examines whether the disparity of values exchanged and the process involved in the reaching of the agreement were such that one party signed at a severe personal detriment. Here, the Court ruled that the terms were so disproportionate and the means of acquiring Mr. Derby’s signature suggested that the contract was unconscionable and should be set aside. Moreover, the Court held that the misrepresentation of Mrs. Derby about her infidelity and her possible return to the marriage, coupled with her preying on Mr. Derby’s emotional weakness created a situation where it would be inequitable to uphold the agreement. Therefore, the Court of Appeals affirmed the trial court’s decision, although it established a different basis for its decision in regards to the separation agreement.

You should consult with your Virginia divorce lawyer concerning the possibility of setting aside your separation agreement.

 

Could a spouse accused of adultery in a Virginia divorce case be at a disadvantage by invoking his or her Fifth Amendment right?

The right to claim a 5th Amendment privilege against self-incrimination in adultery cases has been severely limited with the recognition of a constitutional right, under the due process clause of the 14th Amendment, to privacy protecting consensual sexual behavior between adults in private.  Lawrence v. Texas, 539 U.S. 558 (2003);  Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005).  Nevertheless, there are instances in which an accused spouse may wish to invoke his or her right under the 5th Amendment.  In Virginia, the consequences of proving adultery are quite serious and may result in a spouse being denied spousal support. Where a spouse’s conduct is suspicious, courts will look to see if an explanation has been provided for the conduct. If no reason has been provided, courts will usually draw a negative inference. Black’s Law Dictionary (8th ed.) defines “negative inference” as: “a detrimental conclusion drawn by the fact-finder from a party’s failure to produce evidence that is within the party’s control.” To prevent a negative inference from being drawn should a spouse accused of adultery exercise his or her Fifth Amendment right?

Typically, a court cannot draw a negative inference from a spouse’s invocation of the Fifth Amendment. See Romero v. Colbow 27 Va. App. 88 at 93, 497 S.E. 2d 516 (1988).  However, it appears that despite the protection afforded by § 8.01-223.1, it is possible that a negative inference from exercising the Fifth Amendment can be drawn. In Watts v. Watts 40 Va. App. 865, 581 S.E. 2d 224 (2003)  this may be what the Court of Appeals did. In Watts, wife accused her husband of adultery. When deposed, husband invoked his Fifth Amendment right and refused to answer any questions about his new paramour. In a footnote, the court stated that they were “mak[ing] no negative inference” on his exercise of his Fifth Amendment right. However, having found substantial evidence of adultery, the court of Appeals made the following statement: “in doing so [invoking the privilege], husband failed to provide a reasonable explanation for his conduct, a matter about which we do take cognizance.”

Likewise, in Sparks vs. Sparks 768 S.W.2d 563 (1989), the Eastern District of the Missouri Court of Appeals held that a wife who invoked her Fifth Amendment privilege was not entitled to the affirmative relief of temporary maintenance and attorney’s fees in her divorce action. Another case that echoed this ruling is Robinson vs. Robinson 615 A.2d 1190 (1992), the Court of Appeals of Maryland held that the court is entitled to draw a negative inference against the spouse who refuses to testify. In Robinson, the wife invoked her privilege and refused to answer a question regarding adultery which led the court to infer that she had indeed committed adultery.

A contrary result was reached in Romero v. Colbow 27 Va. 88, 497 S.E.2d 516 (1998), a divorce case where the wife invoked her privilege in connection with questions about adultery. The Court of Appeals upheld the commissioner in chancery’s finding that evidence was not “clear and convincing” to prove the wife had committed adultery, despite evidence of the contrary. The commissioner, relying on Virginia Code§ 8.01-223.1, had said that the wife’s invocation of the Fifth Amendment cannot be used against her.

You should consult with your Virginia divorce lawyer to determine if invoking the Fifth Amendment is available to you and in your best interest.

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In a Virginia divorce based on adultery, may judge award spousal support to wife despite her proven adultery and award of substantial property in equitable distribution?

Yes, if there is clear and convincing evidence that it would be a manifest injustice to deny spousal support under Virginia Code §20-107.1(B), as demonstrated in the recent unpublished case of Nowlakha v. Nowlakha, Record Number 2377-13-4, decided May 27, 2014 by the Court of Appeals of Virginia, on appeal from the Circuit Court of Fairfax County, Virginia.

In Nowlakha, the parties were married for more than twenty-four years before separating.  The husband operated a printing business which generated about $156,000 a year in income.  The wife was a stay at home mom, except for occasional assistance to her husband in the printing business.  The husband also earned $24,000 a year in rental income.  At the time of the final hearing on divorce, the husband was earning $15,000 a month and the wife was making $477 a month as a part-time clerk.  The Circuit Court judge awarded $5,000 a month in permanent spousal support to the wife, later amended downward to $4,000 a month, in spite of her adultery.

The husband discovered wife’s adultery when he found letters from her paramour to her in the marital residence.  After the confrontation over adultery, the wife moved out of the marital bedroom into a separate bedroom in the house.  The husband attempted a reconciliation with the wife and told her that he forgave her for the adultery.  Three months later, the husband filed for a divorce based on adultery.  Two months later, when she was served with the divorce papers, the wife left the marital residence.

At trial the wife introduced evidence that the husband had been controlling of her life, physically, sexually and verbally abusive toward her and secretive about his business during the marriage.  She maintained that the marriage had been deteriorating before her adulterous affair.  The wife admitted to two incidents of adultery after the husband and wife separated.

The trial court judge held that the husband did not prove by clear and convincing evidence that wife committed adultery prior to the separation, but did prove wife’s post-separation adultery.  The court awarded husband a divorce based on adultery, but found it would be a manifest injustice to deny spousal support to the wife, based on the respective fault of the parties and the relative economic circumstances of the parties.  The court found that the husband and wife were equally responsible for the dissolution of the marriage, and noted husband’s forgiveness of wife for her adultery.

The husband appealed the trial court’s decision on the grounds that the judge erred when she found a manifest injustice based on the respective fault and relative economic circumstances, and improperly considered husband’s forgiving wife for adultery.

On appeal, the Court of Appeals of Virginia noted that it would view the evidence in a light most favorable to the wife, the prevailing party at trial, citing one of its prior cases on manifest injustice, Congdon v. Congdon, 40 Va. App. 255, 578 S.E.2d 833 (2003).  Further, the appellate court recognized that the trial court judge’s decision to award wife spousal support in spite of her adultery would not be reversed on appeal unless clearly wrong or without evidence to support them, citing Rahbaran v. Rahbaran, 26 Va. App. 195, 494 S.E.2d 135 (1997) quoting Williams v. Williams, 14 Va. App. 217, 415 S.E.2d 252 (1992).   The Court of Appeals then recognized three components to Virginia Code Section 20-17.1(B) allowing an award of spousal support to a party guilty of adultery: (1) a clear and convincing evidentiary burden by the guilty party; (2) limited application to a case of manifest injustice; and (3) based exclusively on a consideration of the respective degree of fault and economic disparities of the parties, again citing Congdon v. Congdon, 40 Va. App. 255, 578 S.E.2d 833 (2003).

In this case, the trial court judge’s decision was not clearly wrong or without evidence to support.  On the issue of the respective degrees of fault, the judge found that the wife’s adultery was not the only cause of the dissolution of the marriage.  The trial court judge was not limited to the fault grounds alleged in the pleadings, but could properly consider all behavior affecting the marital relationship.  Barnes v. Barnes, 16 Va. App. 98, 428 S.E.2d 294 (1993). As such, there was evidence supporting the judge’s finding that the parties were equally at fault for the end of the marriage.

On the issue of the relative economic circumstances of the party, the trial court properly considered the parties’ incomes and earning capacities.  Although the wife received a large award of property, including a monetary award, from the husband in equitable distribution, the divorce court judge noted the property was not income producing and would still leave her unable to support herself.  Finally, the Circuit Court judge did not improperly consider a nonstatutory factor, as the husband’s forgiveness was relevant to the respective degrees of fault of the parties.  The trial court’s ruling was affirmed.

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

Can a Virginia court find adultery for equitable distribution purposes in a divorce, but deny sufficient evidence of adultery for the divorce itself?

Yes, in the case of Kidd v. Kidd, Record No: 2038-13-1, an unpublished memorandum opinion of the Virginia Court of Appeals issued on June 10, 2014, the appellate court upheld the trial court’s determination that the evidence did not establish adultery at the higher “clear and convincing” standard required for divorce, but did consider adultery, and condonation, at the lower standard of “reasonable jurists” in making factual determinations for equitable distribution purposes, which will stand unless the appellate court finds an abuse of discretion.

In Kidd, the parties had a long unstable marriage, which included five separations over twenty-eight years before the husband finally filed for a divorce based on wife’s adultery.  The wife filed a counterclaim for divorce based on desertion, or alternatively, on the one year separation of the parties.  The wife also claimed that any adultery had been condoned by the husband.

In the parties’ first four separations, the parties remained separated each time from 6 months to a year before reconciling.  The third and fourth separations were due to wife’s adulterous affair with the same paramour as the alleged adultery leading to the fifth separation.  After the fourth separation, the husband reconciled with the wife on the condition that she have no further contact with her paramour.  After the fourth reconciliation, the wife was diagnosed with cancer and received assistance for transportation to her treatments by the paramour, while the husband refused to care for her or drive her to medical appointments.  She and the paramour shared the same apartment during the last separation of each from his and her spouse.

At trial, the husband testified that his wife had admitted the most recent adultery to him. The paramour’s wife testified that her husband – the paramour – was having an intimate relationship with the wife, and that the wife had admitted to adultery to her, too.  The husband also testified that he had found the paramour erectile dysfunction (ED) medicine when he cleaned out the apartment where the wife and paramour had been living during the final separation.  The wife denied that she committed adultery with the paramour after the fourth reconciliation, stated that she had simply remained best friends with her paramour.  The wife testified that she and her paramour had separate bedrooms in the apartment they shared, and split the rent.  Further, the wife testified that after leaving the apartment she shared with the paramour, she went to live with her daughter and granddaughter, and parked her car at the paramour’s apartment at night so it would not get towed from the daughter’s apartment’s parking lot.

The trial court found that the evidence of adultery did not satisfy the clear and convincing evidence standard, and particularly discounted the paramour’s wife’s testimony, which the court found “helpful or relevant”.  The trial court judge considered adultery while conducting equitable distribution, but found that any adultery did not affect the affect the equitable distribution award because of husband’s condonation.

The Virginia Court of Appeals first recognized the standards of review on appeal.  For the trial court’s fact finding, the appellate court would not reverse those findings unless clearly wrong or without evidence to support them, citing Hughes v. Hughes, 33 Va. App. 141, 531 S.E.2d 645 (2000).  The court noted that was particularly important here, where the court heard the parties’ evidence ore tenus, at a hearing in court in front of the judge, where he could observe their veracity and consider the appropriate weight of the evidence. Mayer v. Corso-Mayer, 62 Va. App. 713, 753 S.E.2d 263 (2014).  The legal standard for proving adultery rested upon the party alleging it, and the adultery must be proved by clear and convincing evidence. Seemann v. Seemann, 233 Va. 290, 355 S.E.2d 884 (1987). Suspicious activity alone is not enough, even when strongly suspicious.  Painter v. Painter, 215 Va. 418, 211 S.E.2d 37 (1975).

 

In Kidd, the Court of Appeals would not upset the trial court’s findings when the evidence was ambiguous and could be interpreted to support the trial court’s decision.  The wife could have simply been in a close platonic relationship with her former paramour, who was helping her get through her cancer treatments by providing financial and emotional support.  The paramour’s wife could have been biased, based on her self-interest as the separated spouse of the paramour.  In addition, she never elaborated on the basis for her belief that the wife and her husband were in an intimate relationship.  The husband’s discovery of the ED medication could be explained by reasons other than adultery by the wife and the paramour.

 

The Court of Appeals noted that adultery could be judged by a different standard in equitable distribution.  While the burden of proof of adultery as a ground for divorce must meet the higher clear and convincing standard, ‘[i]n making factual determinations relevant to an equitable distribution award, a circuit court acts within its discretion as long as the evidence in the record would allow a reasonable jurist to reach the same conclusions.” Wright v. Wright, 61 Va. App. 432, 737 S.E.2d (2013).  “An abuse of discretion occurs only when “reasonable jurists” could not disagree as to the proper decision.” Hamad v. Hamad, 61 Va. App. 593, 739 S.E.2d 232 (2013).

 

In Kidd, the trial court judge found that the husband had condoned the wife’s adultery after the third and fourth separations by resuming marital relations with her.  The Virginia Court of Appeals defined condonation as “the remission, by one of the married parties, of an offense which he knows the other has committed against the marriage, on the condition of being continually afterward treated by the other with conjugal kindness”, citing Cutlip v. Cutlip, 8 Va. App. 618, 383 S.E.2d 273 (1989).  While condoned adultery could be revived if the guilty spouse resumed sexual intercourse with the paramour, here the husband failed to prove further adultery.

 

The Virginia Court of Appeals upheld the trial court’s award of spousal support and attorney’s fees, noting that the standard of review for spousal support was the same as that for equitable distribution: the award would stand unless it was an abuse of discretion.  The trial court properly considered the factors for awarding support in Virginia Code Section 20-107.1(E) .  The appellate court noted that the trial court had discretion as to how much weight to give each factor, citing O’Loughlin v. O’Loughlin, 20 Va. App. 522, 526, 458 S.E.2d 323,

325 (1995).  The trial court was within its discretion to accept the wife’s testimony that she was no longer living with the paramour, and therefore needed support, contrary to the husband’s allegations.  The lower court’s determination of the parties’ respective financial resources and needs was reasonable.  As such, the ruling on support or attorney’s fees was not an abuse of discretion and would not be reversed.

 

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

In a divorce case based on adultery, can husband compel wife’s alleged paramour to provide his cell phone records and to testify about sexual relations with wife?

Yes, within limits, ruled the judge in the case of Susan K. Davis v. Millard M. Davis, Civil Nos.: CLI3-7696 and 13-7696-01 in the Norfolk Circuit Court in Virginia’s Fourth Judicial Circuit (http://valawyersweekly.com/fulltext-opinions/2014/09/15/014-8-081-davis-v-davis/ ).

In Davis, the parties originally entered into a separation agreement.  The husband later moved the court to set aside the separation agreement based on wife’s behavior during settlement negotiations.  The husband first subpoenaed wife’s telephone records and discovered the telephone number of her alleged paramour from her phone records.  The husband then issued a subpoena duces tecum to wife’s alleged paramour for his cell phone records.  The alleged paramour filed a motion to quash the husband’s subpoena on the grounds that the records included private business information pertaining to his self-employment that the husband might misuse.

At the husband’s deposition of wife’s alleged paramour, the paramour pled his 5^th Amendment right against self-incrimination with respect to questions about sexual relations with the wife, which comprised most of the questions asked.  The husband filed a motion to compel the alleged paramour to answer his questions.  The alleged paramour argued that the questions asked exposed him to possible prosecution for fornication, prostitution, and/or consensual sodomy which at the time of the ruling, were all statutory crimes in Virginia (the sodomy statue has since been revised).

The Virginia Circuit Court judge granted in part, and denied in part, the alleged paramour’s motion to quash.  The judge noted that the husband might likely misuse the information from the alleged paramour’s cell phone records, given the history of the husband’s conduct in this contested divorce case.  Therefore, the judge ordered the alleged paramour to provided redacted phone records showing only the wife’s telephone calls.  With respect to any other calls shown on the records, the husband would be required to provide prior written justification for the relevancy of his need for those other specific phone numbers requested in order to obtain the records of those calls.

Similarly, the Circuit Court judge granted in part, and denied in part, the husband’s motion to compel.  The judge ruled that the paramour could only raise his 5^th Amendment right not to incriminate himself with respect to each particular question, and not as a blanket privilege to a whole line of questioning.  The court recognized that the fornication statute had been held to be unconstitutional with respect to private consensual sexual conduct in Virginia, citing Martin v. Ziheri, 269 Va. 35, 607 S.E.2d 367 (2005) and McDonald v. Commonwealth, 274 Va. 249, 645 S.E.2d 918 (2007), and, as a Class 4 misdemeanor, had a one year statute of limitations.  The judge ruled the possibility of a prostitution prosecution was misplaced by the alleged paramour, as gifts given to a lover do not rise to the level of prostitution.  With respect to consensual sodomy, the judge recognized that the Virginia statute had been declared unconstitutional when applied to private sexual behavior between adults by the Fourth Circuit Court of Appeals in the case of Macdonald v. Moose, 710 F.3d 154 (4^th Cir., 2013) , while the Supreme Court of Virginia had recognized the statute as constitutional with respect to adult and minor acts in McDonald v. Commonwealth, 274 Va. 249, 645 S.E.2d 918 (2007), and with respect to public acts in Singson v. Commonwealth, 46 Va. App. 724, 621 S.E.2d 682 (2005)  .  The court recognized there is no statute of limitations for the prosecution of felonies, like consensual sodomy, in Virginia.

As these sexual crimes might still be prosecuted for acts occurring in public, the court analyzed various cases in Virginia addressing what might constitute a “public” criminal sexual act, recognizing that any potential prosecution would depend upon the particular circumstances in each case, and which could occur where there is no reasonable expectation of privacy, including on private property which might forseeably be open to public view.  Accordingly, the alleged paramour would have to claim his privilege for each particular question.  Finally, the judge ruled that the alleged paramour was required to answer questions about coitus with the wife occurring more than a year before the question asked.

You should discuss with your Virginia divorce attorney or Richmond divorce lawyer James H. Wilson, Jr., how allegations of adultery may affect the outcome of your Virginia divorce case.

Would it be a manifest injustice to deny spousal support in a Virginia divorce to a stay-at-home wife for her post-separation adultery?

Yes, in the case of Barnes v. Barnes, 16 Va. App. 98, 428 S.E.2d 294 (1993), where the Virginia Court of Appeals upheld the trial court’s award of permanent spousal support to the wife in spite of her adultery, because her adultery did not contribute the deterioration of the marriage or prevent a reconciliation of the parties.  Thus, given the relative fault of the parties and the disparity in economic circumstances, there was clear and convincing evidence in Barnes that it would have been a manifest injustice to deny spousal support to the wife under Virginia Code §20-107.1.

In Barnes, the husband and wife were married for nine years before the wife filed for divorce.  During the marriage, the husband worked as president of an insurance adjuster firm he had started before the marriage.  The wife did not work outside the home, as agreed by the parties, but did help the husband in his business by entertaining clients and accompanying the husband to business conventions.  The wife became unhappy in the marriage due to the time the husband devoted to his business, and the occasional contempt he expressed toward her in public.  Both parties recognized the marriage was over after nine years.  The wife left the house after filing for divorce on the grounds of mental cruelty and constructive desertion by the husband.  The husband filed a cross bill for divorce from the wife based on her desertion and her adultery after the parties separated.  The wife admitted that she had engaged in sexual intercourse with a man not her husband after the parties separated, but before they had divorced.  While the husband was a 40% owner of a business and made approximately $7,800 a month, the wife made $140 a month and had few assets of her own.

Evidence was presented to a commissioner in chancery, a semi-judicial official used to make fact findings and recommendations in equity practice, and other legal matters, in Virginia.  The commissioner found that the husband was not guilty of cruelty or constructive desertion, and that the wife had committed post-separation adultery.  The trial judge granted the husband a divorce based on wife’s adultery and awarded wife permanent spousal support or alimony of $1,200 a month.  The divorce court judge also awarded wife a five percent interest in husband’s business, which he ruled to be marital property.  The husband was awarded title to the marital residence and was solely responsible for any capital gain resulting from any sale of the property.  The wife was awarded a 35% interest in the value of the marital residence, to be paid by husband.  The husband was ordered to pay half of the amount of wife’s divorce attorney’s fees to wife and half of wife’s expense to appraise the value of his business.  The husband appealed the decision of the Virginia Circuit Court judge to the Court of Appeals.

The Court of Appeals of Virginia first noted that the wife did not desert the husband, as she had filed for divorce, which justified her leaving the marital residence, citing Allis v. Allis, 216 Va. 13, 216 S.E.2d 16 (1975), as long as her divorce case was not filed with a fraudulent or frivolous intent.  Byrd v. Byrd, 232 Va. 115, 348 S.E.2d 262 (1986).  Here, although the wife did not prevail on grounds of desertion by the husband, the evidence supported the trial court’s finding that the case was not filed in bad faith.

The appellate court upheld the trial court’s award of spousal support, both as to the threshold issue of whether to award support and the actual amount of support awarded.  On the threshold issue of whether the wife’s adultery should bar an award of support, the court held that the trial court correctly applied the standard of proof of “clear and convincing evidence”, and the two-part test for finding a manifest injustice under Virginia Code §20-107.1.  The appellate court ruled that the proven grounds for divorce are not the only consideration in deciding the respective degrees of fault.  Here, the trial court judge did in fact consider the wife’s adultery, and the record was supported by credible evidence that the wife’s post-separation adultery had little effect on the marriage or the prospects for reconciliation.  The marriage had fallen apart due to the lack of attention by both parties, which they admitted, rather than wife’s adultery.  The wife’s earning capacity and assets were considerably less than the husband’s earning capacity and assets, so an award of support was justified.

The Virginia Court of Appeals recognized that it would not overturn the amount of an award of permanent spousal support or maintenance by the Circuit Court judge hearing the divorce case, unless the trial judge abused its discretion or did not consider the spousal support factors in Va. Code § 20-107.1(E), citing Steinberg v. Steinberg, 11 Va. App. 323, 398 S.E.2d 507 (1990).  In Barnes, the trial court correctly considered the spousal support factors and did not abuse its discretion.  The judge had properly weighed “the relative needs, earning capacities and abilities of the parties, their ages, the duration of the marriage, and the manner in which the parties were accustomed to living during the marriage” in arriving at the amount of her award of alimony to the wife.

In reviewing equitable distribution, the appellate court upheld the decision of the trial court to treat the husband’s business as marital property [the equitable distribution statute had not yet been amended to include hybrid or mixed property at the time of the trial].  Although the husband had acquired the business before the marriage as separate property, it was transmuted into marital property during the marriage, as both parties made substantial monetary and nonmonetary to the business, the husband through his direct involvement in his business and the wife through her support of the husband in his business activities and the marriage itself.  Thus, the evidence was sufficient to support the trial judge’s award of a five percent interest in the business to the wife.

Further, the trial court judge properly considered the tax consequences to the parties in equitable distribution, by requiring the husband to take sole responsibility for any capital gains from the sale of the former marital residence he was awarded, as permitted by Virginia Code § 20-107.3(E)(9).   The trial judge also considered that interspousal transfers incident to a divorce are not taxable events under Internal Revenue Code § 1041, but awarded wife the net cash amount she would have realized from an alternative court-ordered sale of the property.  As husband was awarded title to the former marital residence by the judge, the husband would eventually have to pay any future capital gains that would come due from a sale.

Finally, the appellate court affirmed the trial court’s award of attorney’s fees and costs as within the sound discretion of the judge.  The court ruled that the judge did not abuse her discretion as the evidence supported the award was based upon the circumstances of the parties, citing Rowand v. Rowand, 215 Va. 344, 210 S.E.2d 149 (1974).  The wife spent considerable sums in defending husband’s claim that she deserted him, and in obtaining the valuation of the husband’s business against his efforts to stymie her.  Further, the amount of the award was reasonable given the disparity in income and assets between the parties.

You should consult with your Virginia divorce attorney or Richmond divorce lawyer James H. Wilson, Jr., to discuss whether post-separation adultery might bar a spouse from receiving spousal support your divorce case.

Does the mere fact that wife is living together with her boyfriend whom she intends to marry support a finding of adultery for divorce in Virginia?

Not in the case of Hughes v. Hughes, 33 Va. App. 141, 531 S.E.2d 645 (2000) , where the Virginia Court of Appeals reversed the trial court’s holding that such cohabitation was sufficient to prove the fault ground of adultery.

In Hughes, the wife was forced to leave the marital residence with the children.  Due to her financial circumstances, the wife lived with her parents for one month, then moved into a YWCA abused woman’s shelter, then moved into another shelter at St. John’s Villa in Richmond, Virginia, before finally moved into the home of her male friend and co-worker.  She and her children shared a separate bedroom in the home of her male friend.  In deposition testimony, the wife testified that she lived with her male friend because she had nowhere else to live.  The male friend admitted that he wished to marry the wife and found her sexually attractive.  Both admitted that they loved each other, but denied that they had engaged in sexual intercourse with each other.  In addition to living in the same residence, the wife and her male friend shared meals and household chores, and took walks and went to the movies together.

The wife filed for a no fault divorce in the Circuit Court of Chesterfield County, Virginia, under Virginia Code Section 20-91-(A)(9)(a), on the grounds that she and her husband had lived separate and apart for a period in excess of one year, with at least one of them having the intention that the separation be permanent.  The husband filed an answer and a counterclaim alleging adultery and desertion by the wife, additional grounds for divorce in Virginia under Virginia Code Section 20-91(A)(1) and (6).  The wife denied the husband’s allegations and claimed mental abuse and physical abuse. The trial judge relied on deposition testimony of the parties and granted a divorce to the husband based on wife’s adultery.  The wife appealed the divorce court judge’s decision.

The Virginia Court of Appeals noted that it would not hold, as a matter of law, that two people could not live in the same house without engaging in sexual intercourse before marriage.  In reviewing the sufficiency of the evidence as a matter of law, the court ruled the evidence was insufficient to prove adultery by the clear and convincing standard.  The most important evidence contrary to the judge’s findings were the wife’s economic motive in moving in with her male friend along with their open cohabitation and the sworn denials of sexual intercourse by the parties.  In overturning the decision of the Chesterfield County Circuit Court judge, the Virginia Court of Appeals reviewed those cases where circumstantial evidence of adultery was suspicious but not sufficient, and distinguished those cases where circumstantial evidence was sufficient.

For the cases where suspicious or circumstantial evidence was not sufficient, the appellate court cited the Supreme Court of Virginia’s decision in Painter v. Painter, 215 Va. 418, 211 S.E.2d 37 (1975), where the trial court found evidence of white stains on the husband’s underwear and pants and lipstick on his shirt.  A note addressed to the husband stated, “I need you so”.  The husband was seen kissing and hugging a woman in her automobile.  They drove away for several hours, then returned, kissing again.  The husband was also observed visiting the woman’s house for several hours late at night, with only a dim light in the living room on, and leaving at 1:30 a.m.  The husband and the woman denied having a sexual relationship.  The Supreme Court held that the circumstances were strongly suspicious, but not sufficient to overturn the chancellor’s finding that there was not clear and convincing evidence of adultery.

The court also noted the decision of the Supreme Court of Virginia in Seemann v. Seemann, 233 Va. 290, 293, 355 S.E.2d 884, 886 (1987) , where the wife admitted that she slept in the same bedroom as another man, but denied having sexual intercourse with him, for religious reasons.  The wife and the man had slept in hotels together four nights while they traveled cross country and spent two nights in a hotel in Virginia Beach.  The Supreme Court refused to overturn the commissioner’s fact finding that the evidence of adultery was not sufficient due to the religious connotations that wife gave to sexual intercourse outside of marriage, though her testimony might have been inherently incredible otherwise.

Finally, the Court of Appeals noted its decision in Romero v. Colbow, 27 Va. App. 88, 497 S.E.2d 516 (1998) , where the court reversed the trial court’s finding that the commissioner erroneously concluded the evidence did not clearly and convincingly prove the wife committed adultery.  In Romero, the husband suspected his wife of cheating, followed her, and caught her kissing another man in a car at 1 a.m.  The wife had hidden telephone bills revealing the other man’s telephone number and had used the other man’s credit cards.  In addition, the husband had found Polaroid photographs of his wife in only a sweater, without her underwear on, which photographs he had not taken.  When questioned about the photos, the wife cited her 5^th Amendment privilege against self-incrimination.  Both the wife and the other man denied having sexual intercourse with each other.  The appellate court ruled the evidence in Romero was not clear and positive and convincing evidence to support the charge of adultery, citing Haskins v. Haskins, 188 Va. 525, 50 S.E.2d 437 (1948).

These cases were distinguished by the Court of Appeals in the Hughes case from those cases where there were covert meetings between the spouse and alleged paramour, and no credible explanation of the suspicious circumstances, including Coe v. Coe, 225 Va. 616, 303 S.E.2d 923 (1983), Higgins v. Higgins, 205 Va. 324, 136 S.E.2d 793 (1964)  , and Gamer v. Gamer, 16 Va. App. 335, 429 S.E.2d 618 (1993) .  In the Coe case, the wife spent the night or early morning hours at another man’s house, without any explanation or denial.  In Higgins, the wife was found partially undressed in a hotel room with another man while drinking, without a plausible explanation, claiming that she met the man there for a business meeting and took off her clothes to wash her hair in the soft water available there.  The Court of Appeals noted that it had criticized, but did not overturn, the trial court’s decision to grant a no fault divorce in Gamer, where the evidence was the husband had been found dressed in only his robe, at home, with another woman hidden in the bedroom closet.  The Court of Appeals affirmed the trial court’s no fault divorce ruling as harmless error, because granting a divorce based on adultery would not have had any economic impact on the marital property in the case.

You should discuss with your Virginia divorce attorney, or Richmond divorce lawyer James H. Wilson, Jr., whether there exists clear, positive and convincing evidence of adultery in your particular circumstances.

Does evidence of a man’s nighttime visits to wife’s apartment and his leaving in the early morning hours after kissing and embracing her in the doorway support grounds of adultery for a Virginia divorce?

Not in the case of Dooley v. Dooley, 222 Va. 240, 278 S.E.2d 865 (1981) , where the Supreme Court of Virginia reversed the trial court’s ruling that the private investigator’s testimony was sufficient proof of adultery and justified changing child custody from the wife to the husband.

The Dooley case concerned a marriage of five years, a relatively short duration marriage even for our times, by experienced spouses; this was the wife’s third marriage and the husband’s second.  The parties had one minor child, along with minor and adult children from prior marriages.  The wife initiated divorce proceedings with a complaint for a divorce from bed and board on the grounds of constructive desertion – which has been defined in Virginia as consisting of a withdrawal from, or the willful breach or neglect of, significant marital duties, including sexual intercourse, without justification, without an actual desertion by the guilty spouse in leaving the marital residence. Jamison v. Jamison, 3 Va. App. 644, 352 S.E.2d 719 (1987) .  The husband responded with an answer denying the grounds and requesting child custody.  The wife was awarded pendente lite relief consisting of child custody, temporary child support and temporary spousal support.  A year later, the wife moved the court for leave to amend her complaint to add the no fault grounds of a one year separation.  The husband was later granted leave to file his cross bill for divorce based on the one year separation of the parties.  His cross bill also alleged numerous acts of marital fault as support for a denial of permanent support to the wife.  The case was referred to commissioner in chancery for fact findings.

The commissioner in chancery reported that the wife was eligible for divorce on a fault or no fault basis, that the wife should be awarded custody of the minor child, and that spousal support should be reserved but not awarded at present due to the financial circumstances of the parties.  The husband filed exceptions to commissioner’s report, which the Virginia Circuit Court judge sustained, overruling the report.  The trial court judge found sufficient evidence of adultery, denied spousal support to the wife, and awarded custody of the minor child to the husband due to the immoral environment presented by the wife’s adulterous lifestyle.  The wife appealed, challenging the sufficiency of the evidence of adultery, the denial of spousal support and the award of child custody to the husband due to her alleged adultery.

The Supreme Court of Virginia reversed the trial court judge’s decisions.  The appellate court noted the high basic guidelines for proving adultery, citing Colbert v. Colbert, 162 Va.393, 400, 174 S.E. 660, 662 (1934): “To establish the charge of adultery the evidence must be full and satisfactory the judicial mind must be convinced affirmatively.  The proof should be strict, satisfactory and conclusive.”  The court also cited Haskins v. Haskins, 188 Va. 525,530-31, 50 S.E.2d 437, 439 (1948), where it quoted the following with approval: “A charge of adultery is one of a criminal offense and especially and uniquely damaging to the reputation of the party charged. The general and widely recognized presumption of innocence must be indulged against it, and, while it is not required to be proved beyond a reasonable doubt, as in a criminal proceeding, the evidence must be at least clear and positive and convincing. Raising a considerable or even strong suspicion of guilt is not enough.”

In this case, the evidence of adultery was entirely circumstantial and the adulterous conduct had been explained by the wife.  The husband had hired a private investigator, who testified that he had observed a man who visited the wife several times at night.  Although he could not observe what was happening in the wife’s apartment, he did observe the wife and the man embracing and kissing at the door as the man left in the early morning hours.  He also testified that a male neighbor had visited the wife’s apartment several times at nighttime.  The husband’s previous attorney testified at the commissioner’s hearing that he had dated the wife after withdrawing from representation of the husband, and that he had fallen asleep on the couch at her apartment.  He further testified that the wife had covered him with a blanket and he later awoke and left the apartment in the early morning hours.  Later, the wife had invited the husband’s previous attorney to visit her while on vacation at a beach hotel.  The wife explained these events as post-separation dating, in particular, dinner dates, and testified that she was never with another man while living with her husband.  She testified that the husband’s prior divorce lawyer and she had separate motel rooms while on vacation.

The Supreme Court of Virginia recognized that the standard of review was whether under a correct application of the law, a review of the evidence supported the commissioner’s findings or the court’s conclusions.  In Dooley, the appellate court sided with the commissioner as the evidence of wife’s behavior, while certainly suspicious in certain instances, did not meet the standard of being clear, positive and convincing evidence of adultery.  According to the norms of that time, the court noted that the conduct might have been innocent and not adulterous. The case was remanded to the trial court for a reconsideration of the denial of spousal support and the change in custody from the wife to the husband based on the erroneous conclusion of adultery.  One of the justices dissented and would have upheld the trial court’s decision under the standard of review that it was not plainly wrong.

You should consult with your Virginia divorce attorney or Richmond divorce lawyer James H. Wilson, Jr., to discuss whether there may be sufficient evidence of adultery in your divorce case.