As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
I had a divorce case once where the trial judge, prior to issuing his ruling, noted that in his experience, almost every divorce was fundamentally about either sex or money (or both). My experience has been a little more nuanced - and I've seen a large number of cases that were not about sex or money but really about control and abuse - but the judge's observation was not a complete misrepresentation. Of course, when a divorce is primarily about sex, it's usually "sex with someone who's not your spouse."
I've generally stayed away from adultery on this blog because, frankly, it doesn't play the important role in the law regarding divorce that it did 40 or 50 years ago. The one post I did do about two years ago was not really about the law regarding adultery and divorce, but rather about how you prove adultery has occurred. I did, however, in that post make a brief reference to several ways adultery can impact a divorce case, including noting that "the person committing adultery is generally barred from receiving spousal support (although there can be exceptions to this)." A new Court of Appeals opinion this week, however, has led me to believe it's time to expand on that brief note.
In today's blog post, I will offer a brief primer on the interplay of adultery and spousal support in Virginia law.
What the Law Says
So, for an issue like this, it's worth looking at what the law actually says. The relevant law can be found at Virginia Code Section 20-107.1(B). It reads:
"Any maintenance and support shall be subject to the provisions of sec. 20-109, and no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse's favor a ground of divorce under the provisions of subdivision A(1) of sec. 20-91. However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties."
So, that's a mouthful! First of all, ignore the first part of the first sentence - if you follow the links you'll see that's just referring to a provision of law that says how spousal support can be modified. Additionally, if you follow the link to section 20-91(A)(1), that's just the section of law that states that adultery is a ground of divorce. Finally, note that this provision requires only that an adultery ground of divorce "exists in such spouse's favor" - it does not require that adultery actually be the basis on which the divorce is awarded - or even that the non-cheating spouse seek a divorce based on adultery.
So, the "plain English" (or as close to it as I can get) is this - "No permanent spousal support can be awarded to a spouse who has committed adultery, unless it can be proven by clear and convincing evidence that failing to award support would be a manifest injustice, considering the relative degrees of fault during the marriage and the relative economic circumstances of the parties."
So, let me break down each part of this a bit further.
"No permanent spousal support..."
So, what does "no permanent spousal support" mean? If you weren't aware of the nuances of the law, you might think that this applies to awards of spousal support "for life" and not to awards of spousal support for a "defined duration" (as in, saying from the outset support will be for five years - for more on defined duration vs. indefinite spousal support, see my general blog post on spousal support). You would be incorrect, however.
A "permanent" spousal support award only means that this is the permanent, final award of the court, as opposed to a "temporary" spousal support award issued at a pendente lite hearing held while the case was pending. If the law were referring to spousal support without a set end date, it would use the legal terms of art of spousal support of an "indefinite" or "undefined" duration. As a result, this provision of law applies to all final spousal support awards, regardless of duration, and the Court of Appeals has held that this even applies to simple reservations of spousal support (a provision of law that allows the court to decline to award spousal support at this time, but reserve for a party the right to request it again later).
Now, you'll also notice something critical - if this provision applies to final (permanent) spousal support orders, you might think it does not apply to the temporary pendente lite orders. This is correct - courts very often award pendente lite spousal support, even when there are accusations of adultery. If those accusations are later proven, the trial court can order the adulterous support payee to pay back some or all of the support received pendente lite, but the Court of Appeals has held that the trial court is not required to order that any of it be paid back.
"... clear and convincing evidence..."
In order to qualify for the exception to the rule barring spousal support for an adulterous spouse, you must prove that you are eligible for that exception by "clear and convincing evidence." Clear and convincing evidence is probably the vaguest standard of proof we have in law. It is more than a "preponderance of the evidence" (which requires only that a circumstance be shown to be more likely to have occurred than not to have occurred), and less than "beyond a reasonable doubt" (where the proof is so strong that the only doubts of the circumstance having occurred would be ridiculous). The best explanation I've ever heard given for it is that something meets this standard "when, rather than just thinking 'yeah, it probably happened,' you find yourself thinking 'yes, I am convinced that it did happen' even if you have a few lingering doubts."
The "official" Virginia definition of clear and convincing evidence is "that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established."
And that's about as good a job I can do for it. "Clear and convincing evidence" is almost always defined primarily simply as "more than a preponderance, less than beyond a reasonable doubt." I've heard others say it requires being "about 75% certain" (as opposed to 50.1% for preponderance or 95% for beyond a reasonable doubt). That does seem about right.
I do feel compelled to point out the interesting dichotomy here, though - while you are required to prove your eligibility for the exception by clear and convincing evidence, the party alleging adultery also must prove that adultery occurred by clear and convincing evidence.
"... manifest injustice..."
While it may not sound like it, "manifest injustice" is actually also a legal term of art. In Virginia, the term "manifest injustice" is considered synonymous with "miscarriage of justice." In other words, it must be something so outrageous that, if allowed to stand, would shake people's faith in the justice system itself or strike the average person as severely unfair. An example of something considered a "manifest injustice" in other areas of law in Virginia would be when a plaintiff files a lawsuit within the applicable statute of limitations period, but while his lawsuit is pending the law is changed to shorten the statute of limitations period such that now the time within which he filed would have been outside the limitations period. This has happened several time in Virginia, and each time the courts have routinely used a provision of Virginia law that allows them to refuse to apply new laws to already pending cases when doing so would result in a "miscarriage of justice."
"... relative degrees of fault..."
This is exactly what it sounds like - if the adultery was the primary reason the marriage fell apart, then the "relative degrees of fault" tilts heavily against the adulterous spouse. If, however, there was much more going on, then this balance can change. For example, in one case, the Court of Appeals upheld a manifest injustice finding where it was determined that the non-cheating spouse had nonetheless spent 20 years harassing, belittling, and abusing (both physically and emotionally) the cheating spouse. Other situations have come up where both spouses were engaged in adultery - especially if the one seeking spousal support was not the first one to do it.
"... relative economic circumstances..."
This is the other part of the manifest injustice inquiry - the parties' relative economic circumstances. The Court of Appeals has recognized that one of the main purposes of the exception in the law is to ensure that an instance of adultery does not leave a spouse destitute. Economic circumstances are more than mere income differences, however - assets must also be considered. In the Court of Appeals decision rendered this week (the case is called Mundy v. Mundy), the Court reversed a trial court finding of manifest injustice. The trial court's finding was based on the fact that the husband earned more than $850,000 per year, while the wife (the one who had repeatedly committed adultery) earned nothing and only had an earning capacity of about $30,000 per year. The Court of Appeals noted that while that income differential was clearly out of balance, the wife was receiving as part of the property settlement in the case, assets and money worth more than $1.8 million. The Court of Appeals noted that it could hardly be said to be a manifest injustice not to award spousal support to a "millionaire adulteress."
The most important word in the whole passage: "... and..."
The Court of Appeals has, time and time again, noted how critical it is for parties and trial judges to remember that the Code uses the word "and." As in, manifest injustice is shown considering both the relative degrees of fault of the parties and their relative economic circumstances. As in the two must be considered together.
This can be both a benefit and a detriment to the adulterous spouse seeking support. This can be a benefit because if both of those factors tilt in that spouse's favor, but neither on their own would be a "manifest injustice," the two combined might be. It could go against that spouse, however, because perhaps one of those factors on its own would constitute a manifest injustice, but then the other is tilted so strongly the other way that the two combined don't meet the standard.
An example of the first might be an assettless spouse who earns about a third of what his or her spouse does but this spouse had only committed adultery once and the potential payor had committed adultery first and multiple times. Neither would likely be considered a "manifest injustice" on their own, but the two combined very well might.
An example of the second issue, however, could be an assetless spouse with no income and no real earning potential seeking spousal support from a millionaire spouse, but where the millionaire spouse was pretty much a model spouse, while the one seeking the support had engaged in multiple adulterous affairs for years while also physically abusing the non-cheating spouse. The economic differences on their own would likely be considered a "manifest injustice," but work in the misdeeds of the cheating spouse, and it probably won't be.
Affirmative Defenses
Now, if your spouse has committed adultery and wants spousal support, but you don't think your spouse will qualify for the statutory exception, you're not necessarily out of the woods yet. Adultery has several affirmative defenses (for more about affirmative defenses, see my post on the subject), and if any of those apply, then the bar to spousal support will not apply. The two most important (primarily because they are the most common) are the defenses of "connivance" and "condonation." Connivance is a defense that states that the adultery essentially occurred as a result of your own intentional doing. This is not "you stopped having sex with your spouse so that made it ok for your spouse to have sex with other people" rather this is "you intentionally sought to have them have sex with other people." Common situations where this occurs are so-called "open marriages" where the spouses agree in advance that they can have sex with other people, sex with your spouse involving one or more additional people at the same time, or (sadly, yes, this occurs) situations where your spouse tricks you into having sex with someone else (though it's also worth noting that "adultery" itself requires that the sex be consensual, so a non-consensual encounter like this or any other form of rape cannot be used as the basis for an adultery finding).
"Condonation" could also be called "forgiveness." This is where you learn of your spouse's adultery after the fact and either a) approve of it, or b) forgive it. Condonation can be both express or implied - if you expressly forgive your spouse, condonation obviously applies, but even if you just imply that you have forgiven your spouse (even if was not your intention to do so) it still applies. The most often time that I see "implied condonation" is when a spouse learns of his or her spouse's adultery, but then still lives with and has sex with his or her spouse afterwards.
If connivance or condonation is proven, then spousal support can still be awarded to an adulterous spouse. Note, however, the connivance or condonation can only apply to sex that is reasonably contemplated by the connivance or condonation. For example, if there's an act of express or implied condonation, the non-cheating spouse cannot then use against the cheating spouse the adultery the non-cheating spouse knew of at the time, but the non-cheating spouse can still rely on adulterous acts the non-cheating spouse was not aware of at the time, or which occurred after the express or implied condonation.
What about adultery by the payor?
You might notice that this post talks almost exclusively about adultery committed by the party seeking spousal support. You might be thinking "what about the party potentially paying spousal support?" Well, in those cases, it's a bit more complicated. There's no statutory bar involved (except that they also would not be able to receive spousal support), but it is still relevant. In addition to being a consideration in the manifest injustice analysis, it would also be considered a "negative nonmonetary contribution to the well-being of the family" when the court considers the statutory factors in figuring out how much support to award and for how long. Nonetheless, adultery definitely does not have nearly as dramatic an effect on the potential payor of spousal support as it does on the potential payee.
Conclusion
Adultery is a complicated area of family law, but when it comes to spousal support, it has some critical implications. If you are involved in a spousal support case which includes allegations of adultery, you would best be served by speaking with an attorney. I, and other attorneys at my firm, routinely handle these matters, and you can contact us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
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