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?

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.

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