When a Virginia divorce is based on adultery, would it be a manifest injustice to deny spousal support to a wife who is still living with her paramour and their son?

When a Virginia divorce is based on adultery, would it be a manifest injustice to deny spousal support to a wife who is still living with her paramour and their son?

Not according to the City of Salem, Virginia, Circuit Court judge in the case of Carter v. Carter , Case No: CL09-524, who denied permanent spousal support or maintenance to the wife who was guilty of adultery and continued to live with her paramour and their child.  While the case does not directly concern bankruptcy law, it does highlight some of the financial repercussions of the fault ground of adultery in a Virginia divorce case.  Under Virginia Code Section 20-107.1, a Virginia divorce court judge shall not award permanent maintenance or support to a guilty spouse when the fault ground of adultery, sodomy or buggery committed outside the marriage exists, under Virginia Code Section 20-91(1), unless the denial of support and maintenance would constitute a manifest injustice, as shown by the higher civil burden of proof of clear and convincing evidence.  The divorce court trial judge would examine the respective degrees of fault during the marriage and the relative economic circumstances of the parties in determining whether such a manifest injustice would result from a denial of alimony or permanent spousal support.

In Carter, the couple were married for sixteen years and had seven children before separating.  The wife had worked prior to the marriage, but did not work outside the home after the marriage.  Both parties were deeply involved with their church and the wife had home schooled the children.  The evidence indicated that the husband abused his role as the spiritual head of the household (in accordance with the parties’ religious beliefs) by belittling his wife and treating her as a child, strictly limiting her budget and holding her accountable for all her spending.  The wife tired of the husband’s neglect and controlling treatment of her and withdrew from the marriage, concentrating on raising her children.  She contacted an old boyfriend through the internet and began going out at night to meet him.  The husband became even more controlling, taking the wife’s cell phone and her car keys from her.  The wife eventually left the marital residence to live with her paramour, with whom she had a child.

The Virginia Circuit Court judge appointed a guardian ad litem to represent the interests of the minor children of the parties in the custody dispute portion of the divorce case.  The report of the guardian ad litem reflected the different views of the husband and the wife toward the marriage, which the husband found fulfilling and the wife found stifling.  The Circuit Court judge held that the wife’s adultery was the legal fault for the divorce of the parties and a negative non-monetary contribution to the marriage.  While the trial judge noted that the adultery was the result of mental neglect, domination and control by the husband, he concluded that those factors did not authorize the adultery.  The judge found the wife to be the more credible party based on the parties’ testimony, but he nevertheless awarded physical custody of the minor children to the husband and denied permanent spousal support or maintenance to the wife.  In equitable distribution, the judge did award a higher portion of the equity in the marital residence to wife rather than husband.

In denying spousal support to the wife, the judge stated that he was bound by the dictates of §20-107.1 of the Code of Virginia, and concluded that no manifest injustice would result from a denial of alimony, without revealing the factual support for that conclusion.  Although the wife had stayed at home to take care of the children for the entire duration of the marriage, the judge did impute income to her at the minimum wage in calculating child support, indicating his belief that she could or should be working now.  The fact that she was still living with her paramour would suggest that she was not without support.  One could reasonable assume that as the judge concluded that the fault ultimately rested on wife’s adultery and her financial circumstances did not leave her destitute, it was not a manifest injustice to deny permanent spousal support to her.

You should discuss with your Virginia divorce lawyer or Richmond divorce lawyer James H. Wilson, Jr., whether the marital fault of adultery might result in a denial of permanent spousal support or alimony in your Virginia divorce case.

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