Does a mutual reservation of spousal support satisfy the manifest injustice exception to the bar of spousal support for adultery?

No, as the case of Giraldi v. Giraldi, 64 Va. App. 676, 771 S.E.2d 687 (Va. App. 2015) demonstrates, where the Virginia Court of Appeals reversed the trial court’s reservation of spousal support as an abuse of discretion.

The parties were married for twelve years before they separated.  Wife began having sexual intercourse with her paramour over a six month period during the eleventh year of the marriage.  Wife complained that husband travelled too much, ignored her, and did not provide emotional support.  Husband complained about frequent arguments with wife, and an incident with wife locking him in the walk-in closet and threatening to call the police with a false report of family abuse.

At trial, wife and her paramour admitted to the adultery during the marriage.  The evidence showed husband had monthly income of more than sixteen thousand and wife had monthly income of more than three thousand as a school teacher.  The court recognized that wife’s behavior was unacceptable, but nevertheless reserved spousal support for either party for a period of six and one half years under Virginia Code Section 20-107.1.  Husband appealed the case based on the trial court’s failure to find clear and convincing evidence that a denial of spousal support would constitute a manifest injustice.

The Virginia Court of Appeals reversed and remanded the case based on the trial court’s abuse of discretion.  The appellate court recognized that spousal support is within the discretion of the trial court, citing Northcutt v. Northcutt, 39 Va. App. 192, 571 S.E.2d 912 (2002), and an award would not be disturbed absent an abuse of discretion, citing Fadness v. Fadness, 52 Va. App. 83, 667 S.E.2d 857 (2008).  Further, a trial court’s abuse of discretion can be based on making an error in law.  Porter v. Commonweath, 276 Va. 203, 661 S.E.2d 415 (2008).

Here, the record was devoid of any consideration by the trial court of whether there was clear and convincing evidence that it would be a manifest injustice to bar support based on both the parties’ respective degrees of fault and the parties’ relative economic circumstances.  The trial court did not mention the two factors, any fact findings with respect to these factors, or wife’s burden of proving a manifest injustice by clear and convincing evidence.  The court mentioned shared fault with respect to child custody in ways there were not favorable to wife, but did not compare the respective degrees of fault of the parties for spousal support.  Similarly, while the court considered the parties’ finances, it did not consider the differences between the parties’ economic circumstances, as was necessary to find a manifest injustice.  Again, the evidence on finances was not particularly supportive of the required finding for a manifest injustice as wife had a secure job with minimally adequate income to support herself, while husband’s future employment was uncertain.

The Virginia Court of Appeals resorted to a legal dictionary in ruling that a manifest injustice could not be speculative, citing Black’s Law Dictionary definition of “, obvious and observable…”.  The court also reaffirmed that clear and convincing evidence must be that “measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established”, citing Seemann v. Seemann, 233 Va. 290, 355 S.E.2d 884 (1987).  Beyond the deficiencies in the record, even when the evidence in this case was viewed in the light most favorable to wife, it could not satisfy the clear and convincing standard for a manifest injustice.

You should consult with your Virginia divorce attorney or Glen Allen divorce lawyer James H. Wilson, Jr., concerning the potential consequences of adultery in your marriage.