Adultery in Divorce Law in Virginia

Do wife’s allegations of husband’s sexual activity on the internet, including sexting, soliciting sexual partners on websites, visiting adult websites, saving nude photos of himself, sending sexually explicit e-mails and saving sexually explicit graphics on his computer, constitute sufficient grounds for adultery in Virginia?

No, not in the case of Keeler v. Keeler, Case No. CL2009-15830, where the divorce court judge in the Circuit Court of Fairfax County, Virginia, sanctioned the plaintiff wife’s counsel after granting the defendant husband’s demurrer finding that the wife’s complaint for divorce did not state a cause of action for adultery.

In Keeler, the wife filed a complaint for divorce from her husband on the grounds of adultery.  The wife’s alleged the following in support of husband’s adultery: that the husband was leaving the marital home for reasons not related to his employment; that he was using Craigslist to solicit sexual partners; that there were sexually explicit graphics saving on his computer; that the husband saved nude photographs of himself on the home computer; that husband had saved e-mails soliciting “adult activity” with strangers he met online; that the husband was visiting adult websites; and, that the wife suspected the husband was engaging in adulterous activity, to be developed by further discovery in the divorce case.

In granting the defendant’s demurrer to the complaint for divorce, the court noted that the allegations did not allege with specificity, the time, place and circumstances of adultery, as required in pleading adultery in Virginia, citing the case of Miller v. Miller, 92 Va. 196, 23 S.E. 232 (1895).  The wife’s attorney admitted to the court that the wife had no facts to prove the actual sexual intercourse required to support adultery grounds for divorce.  While circumstantial evidence may be used to prove adultery, the party cannot rely on mere suspicion to justify adultery grounds. In this case, the vagueness of the wife’s allegations did not provide the husband with enough specific notice to allow him to prepare his defense.

The wife admitted that she had obtained her information through a forensic investigation of the family computer.  The wife’s attorney claimed the wife was trying to save the husband from the embarrassment by not listing the specific, explicit details of his adulterous conduct.  Yet, he admitted under questioning by the judge, that he did not have the specific evidence of husband actually having sexual intercourse with a woman not his wife.  Under Virginia Code § 8.01-271.1, an attorney signing a pleading is certifying that the pleading is well-grounded in fact and warranted by law or a good faith argument for the extension of the law.  Ford Motor Co. v. Benitez,  273 Va. 272, 639 S.E.2d 203 (2007).  As counsel lacked sufficient facts to support adultery in the Keeler, he was order to pay attorney’s fees to the husband.

You should consult with your Virginia divorce attorney or Richmond divorce lawyer James H. Wilson, Jr., to discuss if you have sufficient factual support for a divorce based on adultery.

Is the proof of wife’s post-separation adultery sufficient for a fault-based divorce and denial of spousal support?

Yes, in the case of Coe v. Coe, 225 Va. 616, 303 S.E.2d 923 (1983), where the Supreme Court of Virginia affirmed the trial court’s decision to grant a divorce based on adultery that occurred nine months after the separation of the parties and to deny spousal support because of such post-separation adultery.

In Coe, the husband and wife had been married for twelve years, with three children born of the marriage, before the husband filed for a divorce in Virginia on the ground of constructive desertion.  The wife filed a cross bill (now properly called a “counterclaim” under Rule 3:9 of the Rules of the Supreme Court of Virginia after the consolidation of law and chancery courts in Virginia) for cruelty and desertion by the husband.  The wife was awarded pendente lite relief in the form of temporary spousal support and temporary child support.  The husband subsequently amended his complaint for divorce, with leave of court, to include the grounds of adultery based on wife’s post-separation adulterous conduct.

At trial the wife testified about incidents of cruelty by the husband, including acts of physical abuse.  She also introduced testimony by her neighbor, a family physician, and a clinical psychologist, all of whom testified about the wife’s distress but did not directly observe any cruelty or abusive behavior by the husband.  Further, the wife testified that the husband had told her he wanted a divorce.

The husband denied that physical attacks on the wife and testified about name calling, arguments, and physical abuse initiated by the wife.  With regard to the adultery, the husband testified that his neighbor and his children had first alerted him to the visits by a man to his wife’s residence.  He observed the man’s vehicle in the driveway of his wife’s residence.  He also saw his wife with a man at a basketball game.

A licensed private investigator hired by the husband testified that on two occasions he observed the wife enter the apartment of the man at nighttime and leave the next morning.  He also testified that the man and the wife appeared to be there alone.  The detective supported his testimony with photographs he took, while under surveillance, of the vehicles, the residences, and the wife and the man together leaving the man’s apartment.

The trial court judge dismissed the wife’s cross bill and granted a divorce to the husband on grounds of adultery.  The divorce court judge awarded custody of the children to the wife and ordered the husband to pay child support to the wife.  The court denied the wife’s request for permanent spousal support and maintenance as required in an adultery-based divorce under Virginia Code § 20-107.1(B) unless clear and convincing evidence exists that such a denial would be a manifest injustice.  The wife appealed and assigned errors to all findings and ruling of the trial court judge except those concerning child custody and support.

The Supreme Court of Virginia found no errors and affirmed the trial court’s findings and rulings.  The appellate court declined to overrule its decision in Rosenberg v. Rosenberg, 210 Va. 44, 168 S.E.2d 251 (1969) and found that public policy supports allowing a divorce based on post-separation adultery, because it prevents a reconciliation of the parties, even if it is not the original cause of the separation.  In affirming the lower court’s discretion to allow the husband to amend the grounds of his complaint for post-separation adultery, the appellate court also noted that Virginia Code § 20-117, which does not bar a full and final divorce decree based on fault grounds after the granting of a divorce from bed and board, provided the party requesting relief did not know about the fault grounds upon the granting of the decree for a divorce from bed and board (which would necessarily include the possibility of an amendment for post-petition adultery).

The Supreme Court of Virginia affirmed the trial court’s finding that the evidence was sufficient to support the fault ground of adultery, distinguishing the facts in this case from the facts in the case of Dooley v. Dooley, 222 Va. 240, 278 S.E.2d 865 (1981) ,  where the court questioned the credibility of the private investigator’s testimony.  In Dooley the allegedly adulterous acts occurred in the wife’s house, here they occurred in the paramour’s apartment; in Dooley the alleged paramour did not spend the night, here he did; and in Dooley the wife had an explanation for the events, whereas in this case the wife did not even attempt to explain or rebut the husband’s evidence of her adultery.  Further the court affirmed the trial judge’s decision to deny spousal support and maintenance to the guilty spouse, noting that it was required by the Virginia support statute, now Virginia Code § 20-107.1(B) (then in Virginia Code § 20-107).

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 in Virginia.

Will a court award spousal support to a wife despite her admitted adultery during the marriage?

Yes, in the case of Congdon v. Congdon, 40 Va. App. 255, 578 S.E.2d 833 (2003) , where the Virginia Court of Appeals, affirmed the decision of the trial court awarding spousal support to the wife despite her admissions of adultery during the marriage.

The husband and wife were married for twenty-two years before the husband filed for divorce on the grounds of adultery by the wife.  The wife filed a cross-bill alleging cruelty and constructive desertion.  The wife admitted at trial that she had committed adultery and did not contest husband’s request for a divorce on that fault ground.  The evidence established that the wife had engaged in an ongoing adulterous affair for five years during the marriage.  The evidence also established that the husband was profane and verbally abusive during the entire marriage.  He was a heavy drinker who attended strip clubs and topless bars, and often talked about his activities in a profane manner.  He cursed at his children without justification.  The husband showed little affection or gentleness toward his wife, complaining about her weight and household failings.

The husband was a college graduate and a successful businessman who owned a trucking company, amassed considerable investments, and earned a high income.  The wife did not graduate from college, worked in the home and hourly on a part-time basis outside the home as a receptionist.  The husband’s family gave him stock in their trucking company, which increased considerably in value during the marriage.

After hearing and receiving the evidence, the trial court judge held that barring the wife from receiving spousal support would be a manifest injustice under Virginia Code §20-107.1(B) because of the disparity in the parties’ relative financial circumstances.  The judge awarded $2,300 in permanent spousal support or alimony per month to wife, until her death or remarriage. The husband appealed the court’s support decision and the wife appealed the trial court’s classification of the trucking company stock as 90% separate and 10% marital.

The Virginia Court of Appeals first recognized the applicable standard for reviewing a decision to award spousal support despite the adultery of the recipient spouse as being the same for any other fact determination by the trial court judge – the finding will stand unless plainly wrong or without evidence to support it, citing Schweider v. Schweider, 243 Va. 245, 250, 415 S.E.2d 135, 138 (1992) and Torian v. Torian, 38 Va. App. 167, 181, 562 S.E.2d 355, 362 (2002) .  Further, the appellate court recognized that the trial court is vested with the discretion to decide whether to award support and the amount of any support award.  Northcutt v. Northcutt, 39 Va. App. 192, 571 S.E.2d 912 (2002).  An abuse of such discretion occurs in the event of an error of law, Shooltz v. Shooltz, 27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)), or a failure to consider statutory factors, Rowe v. Rowe, 24 Va. App. 123, 139, 480 S.E.2d 760, 767 (1997), or findings that are plainly wrong or without evidence to support them,  Northcutt v. Northcutt, 39 Va. App. 192, 571 S.E.2d 912 (2002).

 

The Virginia Court of Appeals then analyzed the narrow exception to the general rule that adultery bars an award of spousal support, as set forth in Virginia Code § 20-107.1(B).  The court noted that the exception to the bar is limited in three ways:  (1.) it requires the intermediate proof standard of “clear and convincing evidence”; (2.) it applies only in case of “manifest injustice”, a phrase which has been other been associated elsewhere in the code with a miscarriage of justice; and (3.) it limits the fact finder to considering only the relative degrees of fault of the parties and the economic disparity between the parties.  Further, the “based upon” language in the statute requires a higher level of justification than the usual “consideration of” factors language.

In Congdon, the trial court erroneously disagreed with the husband’s argument that the court must consider both relative degrees of fault and economic disparity, and held that either prong would be sufficient to overcome the bar against awarding support, relying on Calvin v. Calvin, 31 Va. App. 181, 186, 522 S.E.2d 376, 378 (1999) for support.  While the appellate court disagreed with the trial court’s statement of the law, citing  Barnes v. Barnes, 16 Va. App. 98, 101-03, 428 S.E.2d 294, 298 (1993) , the court nevertheless upheld the resulting decision by the trial court.  The Calvin case did not concern whether both prongs must be considered, but merely noted in that case that the respective degrees of fault were so heavily weighted in the husband’s favor, that economic disparity would determine the outcome.  Not only was the trial court judge’s reliance on the Calvin case misplaced, but the appellate court also noted that the doctrine of stare decisis applied not only to the literal holding of precedent but also the rationale, in ruling that Calvin did not overrule Barnes.  In fact, the Calvin case cited the Barnes case in its opinion.

As the divorce court judge in Congdon had made alternate fact findings, considering both prongs for manifest injustice on the record, the appellate court was able to base its decision on the husband’s behavior during the marriage, so the relative degrees of fault did not weigh solely against the wife. There was an adequate factual basis in the record for a finding of manifest injustice by the trial judge based both on the respective degrees of fault and the extreme disparities in relative economic situations.  The trial court did properly weigh wife’s adultery against the husband’s base and profane behavior over the course of the marriage, without considering whether it was justified.  There was substantial evidence supporting the trial court’s finding of the extreme economic disparity between the husband and the wife.  As the judge’s support decision was not plainly wrong or without evidence to support it, it was affirmed on appeal.

The appellate court also affirmed the trial court’s classification of the trucking company stock as 90% separate and 10% marital.  The husband had introduced evidence showing that considerable gain was due to passive appreciation and the efforts of others.  There was sufficient evidence for the trial court to find that husband’s efforts contributed to only 10% of the gain in value of the stock.

You should consult with your Virginia divorce attorney or Richmond divorce lawyer James H. Wilson, Jr., to discuss whether adultery might bar an award of permanent spousal support or alimony in your case.

 

Five Reasons Why Adultery Matters in Virginia Divorce Cases

1. Adultery is a fault ground for divorce.

Under Virginia Code §20-91, a divorce may be granted based on the fault ground of adultery, or sodomy or buggery committed outside the marriage.  The crime of adultery is defined in Virginia Code §18.2-365 as a married person voluntarily engaging in sexual intercourse with a person not his or her spouse. ““Sexual intercourse” is defined as actual penetration to some extent of the male sexual organ into the female sexual organ”. Desper v. Commonwealth of Virginia (Va. App., 2011), citing Johnson v. Commonwealth, 53 Va. App. 608, 674 S.E.2d 541 (2009) and McCall v. Commonwealth, 192 Va. 422, 65 S.E.2d 540 (1951).  Consequently, adultery is a purely heterosexual crime and cannot be committed by same sex partners.

While “sodomy” itself is not defined in the Code of Virgina, the crime of forcible sodomy is, which includes aggravating circumstances resulting from the age of the victim or the force used to overcome the victim’s will, or forcibly causing another to commit sodomy.  Under Virginia Code §18.2-67.1 forcible sodomy occurs when the accused “…engages in cunnilingus, fellatio, anilingus, or anal intercourse with a complaining witness whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person…”  Such conduct would have to perpetrated by a spouse with a person not his or her spouse in order for it to constitute a fault ground for divorce.  Sodomy would include both heterosexual and homosexual activity.

“Buggery” is also not defined in the Code of Virginia.  At common-law, “buggery” included anal intercourse between males and sodomy between a male and an animal.    “”If any person commit the crime of buggery, either with mankind or with any brute animal, he shall be confined in the penitentiary not less than two nor more than five years.” 1 Davis’ Cr. Law, 133; 1 Rev. Code 1819, c. 159, p. 586; Code 1849, c. 196, § 12, p. 740; Code 1860, c. 196, § 12; Code 1873, c. 192, § 12, p. 1208; Code 1887, § 3793.  There was no definition explanation, qualification, or enlargement of the word “buggery” in any Virginia statute prior to the aforesaid amendment. The word was used in its common-law sense, whatever that was. No Virginia case ever construed it, but when it first appeared in the statutes of this state it was undoubtedly understood by the law of England, from which we took it, to mean carnal copulation per anum.”  Wise v. Commonwealth, 135 Va. 757, 115 S.E. 508 (Va. 1923).  The exact definition of buggery became less important in the criminal law with the enactment of the statutory crime of crimes against nature, now in Virginia Code §18.2-361, which does not include the term “buggery”, but includes the conduct which constituted buggery under the common law.  As with sodomy, such conduct would have to perpetrated by a spouse with a person not his or her spouse in order for it to constitute a fault ground for divorce, since it must be “outside the marriage.”

 

Under Virginia Code § 20-94, condonation is a defense to the fault ground of adultery or sodomy or buggery committed outside the marriage.  Condonation occurs when the spouses voluntarily cohabit after knowledge of the adultery, sodomy or buggery, or if the injured spouse waits more than five years after the conduct before filing for divorce, or if the spouse procured or connived the adultery, buggery, or sodomy by the guilty spouse.

Recrimination is also a defense to adultery.  A plea of recrimination may be raised when the other spouse is also guilty of a fault ground for divorce.  In effect, the mutual fault bars either party from obtaining a divorce based on fault.  Virginia Code §20-91(A)(9)(a) expressly provides that such recrimination does not, however, bar the spouses from obtaining a no fault divorce after the required waiting period.  In fact, the current caseload of many of the Virginia Circuit Courts makes it difficult for many couples to obtain a final hearing date or trial before the required one year separation period elapses.  As a result, the judge may simply grant a party a no fault divorce despite the fault pled and proved at trial by either party since the required one year separation has elapsed.

 

Nevertheless, adultery remains a fault ground for divorce in Virginia, and an innocent spouse who has not condoned the guilty spouse’s conduct has the legal right to obtain a divorce from his or her spouse on fault grounds of adultery, which may have other advantages and disadvantages in a Virginia divorce case, as explained below.

 

2. Adultery can bar the guilty spouse from receiving permanent spousal support.

Adultery is unique among the fault grounds for divorce in Virginia in mandating that the judge not award permanent maintenance and support to the guilty spouse, unless there is clear and convincing evidence that a denial would constitute a manifest injustice. Va. Code §20-107.1(B).  In considering whether the denial would constitute a manifest injustice, the judge should consider the respective degrees of fault during the marriage and the relative economic circumstances of the parties. (For an analysis of such an example, see a related post on my other blawg: “When a Virginia Divorce is Based on Adultery, Would It Be a Manifest Injustice to Deny Support to a Wife Who is Still Living With Her Paramour and Their Son?”) ,

In addition, a judge is also required under Virginia Code §20-107.1(E) to consider fault grounds, including adultery, “which contributed to the dissolution of the marriage”, as a threshold issue in deciding whether to award support and maintenance to a spouse.  Interestingly, adultery may bar support or be considered as a threshold issue in deciding whether to award support, but should not affect the nature, amount or duration of support, which the Virginia Code requires be determined according to the 13 factors set forth in Section 20-107.1(E).

3. Adultery is one of the factors considered by a Virginia judge in conducting equitable distribution

Among the eleven factors in Virginia Code §20-107.3(E) a judge is required to consider in conducting distribution of property and debts in equitable distribution is “the circumstances and factors which contributed to the dissolution of the marriage”, specifically including the fault grounds of adultery, felony conviction, cruelty and desertion.  Case law in Virginia has limited that factor somewhat to only the extent to which the circumstances affect the marital partnership’s economic condition, Aster v. Gross, 371 S.E.2d 833 (Va. App.1988), or only to the extent of the negative impact on the well-being of the family and the mental condition of the parties. Smith v. Smith, 444 S.E.2d 269 (Va. App. 1994).  These cases recognize that marriage is considered an economic partnership in Virginia; while adultery may lead to the dissolution of the marriage, it does not in all cases affect the property of the parties, such that the guilty spouse should be deprived of the fruits of that long partnership, simply because of brief period of misconduct leading to the termination of that relationship.

4. A final divorce based on adultery has no required period of separation.

A divorce from the bond of matrimony in Virginia may be filed and granted with no required period of separation, only if based on one of two fault grounds: adultery and a felony conviction, sentence and confinement under Virginia Code §20-91(A)(1) and (3).  While a spouse may file immediately for a divorce from bed and board, an intermediate form of divorce in Virginia under Virginia Code §20-95, which if decreed, legally determines that the spouses are “perpetually separated in their persons and property” under Virginia Code §20-116, the spouse may not receive a full and final divorce, which allows him or her to remarry, until after one year from the date of the fault grounds for such a divorce and for a final divorce from the bonds of matrimony: cruelty, reasonably apprehension of bodily hurt, or willful desertion or abandonment.

Under Virginia Code §20-121, a spouse who has filed for a fault-based divorce in Virginia may move the court to recognize the existence of the grounds for a no fault divorce and grant such a divorce after the required one year period, or six months with no minor children and a written separation agreement.

Some separated spouses crave resolution of their broken marriage, and want nothing more than to move on with their new lives without any legal connection to their guilty spouses.  Of course, this desire conflicts with the public policy of the Commonwealth of Virginia in promoting marriage and the family relationship.  The Virginia Code, however, reflects the significance of adultery or a felony conviction in causing an irreconcilable marital breakdown by not imposing a waiting period during which the spouses might reconcile.

While in theory separated spouses could respect each other’s rights to privacy and independence, free from the control of the other estranged spouse while they remain apart from one another, in practice that rarely occurs, particularly if either believes the other is primarily responsible for the breakdown of the marriage or if they have minor children together.  In fact, a pending contested divorce produces stress of its own and requires the parties to relive, again and again, throughout the divorce case, the causes and consequences of their marital problems, as they prepare and answer discovery, negotiate a separation agreement, attend hearings, sit in depositions, and otherwise prepare for trial.

While the Virginia courts’ currently overloaded dockets rarely allow for a contested case to go to final hearing within a year of the date of separation, and counsel must spend substantial time to properly prepare a case for trial, at least a divorce filed on the grounds of adultery holds out the hope that a spouse can move on with his or her life without waiting a year to be granted a final divorce.

5. Adultery has tremendous emotional impact in a Virginia divorce case.

Adultery matters in Virginia divorce cases because it often overloads an emotional process with powerful, mostly negative emotions, including feelings of anger, anxiety, betrayal, embarrassment, fear, guilt, shame and a desire for degradation, humiliation, punishment, and revenge.  Although divorces are usually resolved according to the cold hard facts of income, expenses, assets and liabilities, they may be driven by the hot emotions of marital infidelity.  Contrary to depictions in the popular media, marital fault or the grounds for the divorce is rarely the central focus of a final hearing on divorce, which is largely concerned with more mundane subjects such as health insurance costs, report cards, work histories, property values and the balances on debts.

A spouse who files a divorce based on fault grounds is more likely to receive an answer and counterclaim in response.  Adultery may be used in an attempt to extract a more favorable settlement from the guilty party, due to the desire to avoid public scrutiny and the undesirable prospects of involving the paramour in the proceedings.  On the other hand the spouse proceeding on adultery grounds in a divorce may actually care more about revenge and punishing the guilty spouse than monetary recovery.  As discussed above, adultery may be used to deprive a guilty spouse of support, the realization of which may provide both financial and emotional reward to the victimized spouse.  While the long-term best interests of all litigants are usually best served by approaching the divorce process rationally and objectively, the strong emotions of adultery may cause a party to pursue a different course.

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