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

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Yes, in the case of Kidd v. Kidd, Record No: 2038-13-1, an unpublished memorandum opinion of the Virginia Court of Appeals issued on June 10, 2014, the appellate court upheld the trial court’s determination that the evidence did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.

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