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

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

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

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

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

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

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