Does Adultery Affect Alimony

For a more general discussion about Spousal Support and how it works please see our previous blog here.

You may have heard that when a spouse is found “at fault” in a divorce, he/she are not able to receive spousal support (also called alimony) from their ex-spouse. While this is generally true, rarely a case will trigger § 20-107.1(B)which states:

Any maintenance and support shall be subject to the provisions of § 20-109, and no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse’s favor a ground of divorce under the provisions of subdivision A (1) of § 20-91. However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.

In plain English this means that a spouse that has committed some “fault” may be able to receive some spousal support. Fault in Virginia is commonly adultery, but can also be cruelty, desertion, and incarceration. The important term in the law is “manifest injustice.” In order for the court to award spousal support based on manifest injustice, they must consider BOTH the degrees of fault in the marriage and the financial situation of both parties.

  1. Respective degrees of fault during the marriage.

Respective degrees of fault during the marriage are not limited to legal grounds for divorce. Rather, fault during the marriage encompasses all behavior that affected the marital relationship, including any acts or conditions which contribute to the marriage’s failure, success, or well-being. For example, while a divorce may be granted because of once spouse’s adultery, the judge will also listen to evidence of the many times the other spouse was verbally abusive and will weigh the abuse in the decision for manifest injustice.

  1. Relative economic circumstances of the parties.

The court will consider any evidence that establishes the party’s economic profile. This includes earning capacity, level of education, as well as assets. This evidence cannot be speculative however, because manifest injustice must be direct, obvious, and observable.

  1. An Example

An example of the rare determination comes from a case where a couple was divorced due to the wife’s adultery. While looking at the respective fault, the court found that the wife was vindictive and had even deliberately destroyed some of the husband’s property. The husband had very little fault. The wife however suffered a serious back injury before the divorce and was not able to work. Because, the husband supported the wife for the whole marriage, and the back injury left her unable to work or have health insurance, the court ordered the husband to pay her $10,000 as a lump sum. (To read the case Click Here)

Again, these cases are by far the exception and not the rule. Outside a showing of serious health risks, abject poverty, equally at fault spouses, etc; manifest injustice will not be found.

If you’re ready to get a divorce, Contact Keithley Law, PLLC today by calling (703) 454-5147and schedule an initial consultation in our Fairfax law office with one of our Virginia divorce attorneys. We can walk you through the steps to get the most out of your divorce.

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