Should adultery or some other fault ground for divorce in Virginia, determine the amount and duration of spousal support or alimony?

Should adultery or some other fault ground for divorce in Virginia, determine the amount and duration of spousal support or alimony?

The decision whether to award spousal support and the amount and duration of spousal support to be awarded are left to the judge’s discretion in Virginia.  The court is required, under §20-107.1(E), to consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery, conviction of a felony, cruelty, reasonable apprehension of bodily hurt, or willful desertion or abandonment.  This is a threshold determination that can affect whether a spouse is entitled to support, but that should not affect the duration or amount of support, which should be decided according to the factors numbered 1 through 13 in §20-107.1(E).  A judge must deny spousal support to the guilty spouse when the fault ground of adultery is proven, unless clear and convincing evidence demonstrates that the denial would result in a manifest injustice, as provided in Virginia Code Section 20-107.1(B).

The Virginia Court of Appeals addressed the relationship between fault and support in the unpublished case of Lothar W. Nass v. Arlene Wolin Nass, Record No. 1882-00-1 (April 10, 2001).  In Nass, the parties were married twenty years before separating.  No children were born of the marriage, or adopted.  The husband filed first for a divorce from bed and board under Virginia Code Section 20-95.  The wife filed a cross bill (now properly a counter-claim under Rule 3:9 of the Supreme Court of Virginia for divorce and equitable distribution, alleging cruelty and desertion by husband.  In Virginia, evidence in a divorce case can be presented directly to the court ore tenus or to a commissioner in chancery under Virginia Code Section 8.01-607, a quasi-judicial officer appointed by the court who can make findings of fact and report to the court, or, in some cases, though written or oral depositions.  In Nass, the commissioner found that husband was guilty of cruelty tantamount to constructive desertion and recommended a divorce a vinculo matrimonii or final divorce be entered in favor of the wife.  The husband objected to the commissioner’s report on the grounds that the parties had agreed, during the hearing, to proceed on a no-fault, one year separation, basis, as permitted by Virginia Code Section 20-121.02.  The Virginia Circuit Court overruled husband’s objection granted the wife a divorce on the grounds of desertion and denied husband’s request for spousal support.

On appeal, the Virginia Court of Appeals reversed the trial court’s ruling with respect to the divorce based on constructive desertion, holding that the record demonstrated that husband had validly moved the court for a no-fault divorce under Section 20-121.02 and the evidence supported the relief he requested.  The Virginia Court of Appeals remanded the case to the trial judge to enter a divorce based on living separate and apart for a year, instead of the fault ground of constructive desertion in favor of the wife.

With regard to spousal support, the appellate court first recognized that “[w]hether and how much spousal support will be awarded is a matter of discretion for the trial court”, citing Barker v. Barker, 27 Va. App. 519, 500 S.E.2d 240 (1998).  The Virginia Court of Appeals then noted that under Section 20-91(A)(9)(c), the entry of a no fault divorce decree does not lessen the obligation of either spouse to support his or her spouse, unless the spouse proves the existence of a fault ground in his or her favor.   The court further noted that the spousal support section, Section 20-107.1, did not specify how fault grounds were to be considered in making the threshold determination of whether spousal support would be appropriate.  If an award of spousal support were appropriate, then the trial court should consider the factors listed in Section 20-107.1(E).  In this case, the Virginia Court of Appeals found evidence in the record of husband’s egregious conduct toward wife, thus justifying the divorce court judge’s ruling that husband was not entitled to spousal support.

You should consult with your Virginia divorce lawyer concerning whether any fault grounds would prevent you or your spouse from obtaining spousal support.


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