In a Virginia divorce based on adultery, may judge award spousal support to wife despite her proven adultery and award of substantial property in equitable distribution?

In a Virginia divorce based on adultery, may judge award spousal support to wife despite her proven adultery and award of substantial property in equitable distribution?

Yes, if there is clear and convincing evidence that it would be a manifest injustice to deny spousal support under Virginia Code §20-107.1(B), as demonstrated in the recent unpublished case of Nowlakha v. Nowlakha, Record Number 2377-13-4, decided May 27, 2014 by the Court of Appeals of Virginia, on appeal from the Circuit Court of Fairfax County, Virginia.

In Nowlakha, the parties were married for more than twenty-four years before separating.  The husband operated a printing business which generated about $156,000 a year in income.  The wife was a stay at home mom, except for occasional assistance to her husband in the printing business.  The husband also earned $24,000 a year in rental income.  At the time of the final hearing on divorce, the husband was earning $15,000 a month and the wife was making $477 a month as a part-time clerk.  The Circuit Court judge awarded $5,000 a month in permanent spousal support to the wife, later amended downward to $4,000 a month, in spite of her adultery.

The husband discovered wife’s adultery when he found letters from her paramour to her in the marital residence.  After the confrontation over adultery, the wife moved out of the marital bedroom into a separate bedroom in the house.  The husband attempted a reconciliation with the wife and told her that he forgave her for the adultery.  Three months later, the husband filed for a divorce based on adultery.  Two months later, when she was served with the divorce papers, the wife left the marital residence.

At trial the wife introduced evidence that the husband had been controlling of her life, physically, sexually and verbally abusive toward her and secretive about his business during the marriage.  She maintained that the marriage had been deteriorating before her adulterous affair.  The wife admitted to two incidents of adultery after the husband and wife separated.

The trial court judge held that the husband did not prove by clear and convincing evidence that wife committed adultery prior to the separation, but did prove wife’s post-separation adultery.  The court awarded husband a divorce based on adultery, but found it would be a manifest injustice to deny spousal support to the wife, based on the respective fault of the parties and the relative economic circumstances of the parties.  The court found that the husband and wife were equally responsible for the dissolution of the marriage, and noted husband’s forgiveness of wife for her adultery.

The husband appealed the trial court’s decision on the grounds that the judge erred when she found a manifest injustice based on the respective fault and relative economic circumstances, and improperly considered husband’s forgiving wife for adultery.

On appeal, the Court of Appeals of Virginia noted that it would view the evidence in a light most favorable to the wife, the prevailing party at trial, citing one of its prior cases on manifest injustice, Congdon v. Congdon, 40 Va. App. 255, 578 S.E.2d 833 (2003).  Further, the appellate court recognized that the trial court judge’s decision to award wife spousal support in spite of her adultery would not be reversed on appeal unless clearly wrong or without evidence to support them, citing Rahbaran v. Rahbaran, 26 Va. App. 195, 494 S.E.2d 135 (1997) quoting Williams v. Williams, 14 Va. App. 217, 415 S.E.2d 252 (1992).   The Court of Appeals then recognized three components to Virginia Code Section 20-17.1(B) allowing an award of spousal support to a party guilty of adultery: (1) a clear and convincing evidentiary burden by the guilty party; (2) limited application to a case of manifest injustice; and (3) based exclusively on a consideration of the respective degree of fault and economic disparities of the parties, again citing Congdon v. Congdon, 40 Va. App. 255, 578 S.E.2d 833 (2003).

In this case, the trial court judge’s decision was not clearly wrong or without evidence to support.  On the issue of the respective degrees of fault, the judge found that the wife’s adultery was not the only cause of the dissolution of the marriage.  The trial court judge was not limited to the fault grounds alleged in the pleadings, but could properly consider all behavior affecting the marital relationship.  Barnes v. Barnes, 16 Va. App. 98, 428 S.E.2d 294 (1993). As such, there was evidence supporting the judge’s finding that the parties were equally at fault for the end of the marriage.

On the issue of the relative economic circumstances of the party, the trial court properly considered the parties’ incomes and earning capacities.  Although the wife received a large award of property, including a monetary award, from the husband in equitable distribution, the divorce court judge noted the property was not income producing and would still leave her unable to support herself.  Finally, the Circuit Court judge did not improperly consider a nonstatutory factor, as the husband’s forgiveness was relevant to the respective degrees of fault of the parties.  The trial court’s ruling was affirmed.

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.

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