Is the proof of wife’s post-separation adultery sufficient for a fault-based divorce and denial of spousal support?
Yes, in the case of Coe v. Coe, 225 Va. 616, 303 S.E.2d 923 (1983), where the Supreme Court of Virginia affirmed the trial court’s decision to grant a divorce based on adultery that occurred nine months after the separation of the parties and to deny spousal support because of such post-separation adultery.
In Coe, the husband and wife had been married for twelve years, with three children born of the marriage, before the husband filed for a divorce in Virginia on the ground of constructive desertion. The wife filed a cross bill (now properly called a “counterclaim” under Rule 3:9 of the Rules of the Supreme Court of Virginia after the consolidation of law and chancery courts in Virginia) for cruelty and desertion by the husband. The wife was awarded pendente lite relief in the form of temporary spousal support and temporary child support. The husband subsequently amended his complaint for divorce, with leave of court, to include the grounds of adultery based on wife’s post-separation adulterous conduct.
At trial the wife testified about incidents of cruelty by the husband, including acts of physical abuse. She also introduced testimony by her neighbor, a family physician, and a clinical psychologist, all of whom testified about the wife’s distress but did not directly observe any cruelty or abusive behavior by the husband. Further, the wife testified that the husband had told her he wanted a divorce.
The husband denied that physical attacks on the wife and testified about name calling, arguments, and physical abuse initiated by the wife. With regard to the adultery, the husband testified that his neighbor and his children had first alerted him to the visits by a man to his wife’s residence. He observed the man’s vehicle in the driveway of his wife’s residence. He also saw his wife with a man at a basketball game.
A licensed private investigator hired by the husband testified that on two occasions he observed the wife enter the apartment of the man at nighttime and leave the next morning. He also testified that the man and the wife appeared to be there alone. The detective supported his testimony with photographs he took, while under surveillance, of the vehicles, the residences, and the wife and the man together leaving the man’s apartment.
The trial court judge dismissed the wife’s cross bill and granted a divorce to the husband on grounds of adultery. The divorce court judge awarded custody of the children to the wife and ordered the husband to pay child support to the wife. The court denied the wife’s request for permanent spousal support and maintenance as required in an adultery-based divorce under Virginia Code § 20-107.1(B) unless clear and convincing evidence exists that such a denial would be a manifest injustice. The wife appealed and assigned errors to all findings and ruling of the trial court judge except those concerning child custody and support.
The Supreme Court of Virginia found no errors and affirmed the trial court’s findings and rulings. The appellate court declined to overrule its decision in Rosenberg v. Rosenberg, 210 Va. 44, 168 S.E.2d 251 (1969) and found that public policy supports allowing a divorce based on post-separation adultery, because it prevents a reconciliation of the parties, even if it is not the original cause of the separation. In affirming the lower court’s discretion to allow the husband to amend the grounds of his complaint for post-separation adultery, the appellate court also noted that Virginia Code § 20-117, which does not bar a full and final divorce decree based on fault grounds after the granting of a divorce from bed and board, provided the party requesting relief did not know about the fault grounds upon the granting of the decree for a divorce from bed and board (which would necessarily include the possibility of an amendment for post-petition adultery).
The Supreme Court of Virginia affirmed the trial court’s finding that the evidence was sufficient to support the fault ground of adultery, distinguishing the facts in this case from the facts in the case of Dooley v. Dooley, 222 Va. 240, 278 S.E.2d 865 (1981) , where the court questioned the credibility of the private investigator’s testimony. In Dooley the allegedly adulterous acts occurred in the wife’s house, here they occurred in the paramour’s apartment; in Dooley the alleged paramour did not spend the night, here he did; and in Dooley the wife had an explanation for the events, whereas in this case the wife did not even attempt to explain or rebut the husband’s evidence of her adultery. Further the court affirmed the trial judge’s decision to deny spousal support and maintenance to the guilty spouse, noting that it was required by the Virginia support statute, now Virginia Code § 20-107.1(B) (then in Virginia Code § 20-107).
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 in Virginia.