Virginia Spousal Support and Adultery: A Manifestly Unjust Application of the Manifest Injustice Exception

When can an adulterer receive spousal support in Virginia?

Va. Code § 20-107.1 states:

“ . . . [N]o 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 (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.”

The Salem Circuit Court addressed the manifest injustice exception in Carter v. Carter (CL-09-524).  In that case, the parties had 7 children together during their 16 year marriage.  The wife, on one hand, quit her collegiate education to home school all of the children.  She did not work at all during their marriage.  She relied, instead, on her husband to provide her with financial resources.  The husband, on the other hand, completed his engineering education during the marriage.  He earned about $100,000 per year at the time of trial.

The husband also subjected his wife to extensive emotional abuse.  He was altogether controlling, critical and unemotional.  He treated his wife like a child.  He refused to discuss any of her concerns.  He created an unrealistically low budget for her.  He tracked all of her expenditures on a daily basis.  He demanded reimbursement from her if she exceeded his budget even though she did not have any work income. She was, as a result, in constant debt to him.  He also controlled her access to her car keys and cell phone.  The wife was altogether so terrified of her husband that she would often lock herself in her room and go to bed fully clothed with her cell phone and purse while he struggled to gain access by picking the lock.

Thus, it should come as little surprise to learn that the wife left her husband.  She started dating another man and had his child soon thereafter.  The husband, nevertheless, did not take the news of her dating sitting down.  He attempted to prevent her from leaving the house.  He hid her car keys.  He installed a GPS monitoring system on her car.  He hired a private detective to follow her.  He transferred all but $200 out of their joint funds to an account in his sole name and denied her access to their joint credit cards.  He told her that she would never see her children again.  He excluded her outright from continuing to school the children.  He also began to alienate the children from her.  He told the children that she did not love them anymore.  He told the children that she was leaving her rather than him.  He encouraged the younger children to ask questions about her sex life.  He encouraged the older children to belittle her.  He even went with their oldest son to her paramour’s house where they each screamed for her to not defile herself.  He would not let her care for children anymore and obtained temporary custody of them by giving them a false impression that she was a threat to the children because of mental issues.  He also took a voluntary pay cut at work, which he claimed was for the purpose of allowing him more time with the children but was instead likely designed to reduce the likelihood that he would have to pay her ample child and/or spousal support.  He, lastly, engaged in a romantic relationship with the children’s nanny, which culminated in their marriage the morning after the last court hearing.  He had lied about the existence of his relationship with the nanny at court the prior afternoon.

Despite the husband’s loathsomeness, he made out like a bandit at trial.  The court awarded him primary physical custody of the children.  The children apparently grew to hate their mother to such an extent that the court apparently had no choice but to give him primary physical custody of them until their relationships with their mother were mended.  The court also awarded him meager child support from the wife per the statutory guidelines.  The court also awarded him 41 % of the marital estate as follows:

Wife                                                        Husband

Marital Residence: $93,196.92 (69%)    Marital Residence: $41,871.08 (31%)

Retirement Account:$64,412.81 (50%)  Retirement Account: $61,412.80 (50%)

2007 Ford Van: $13,005.00 (100%)       2004 Chevy SUV: $12,940.00 (100%)

2009 Tax Return: $6,907.50 (50 %)       2009 Tax Return: $6,907.50 (50 %)

TOTAL:  $177,522.23 (59 %)                TOTAL: $123,131.38 (41 %)

The husband, therefore, left the marriage with the children, the martial residence, an automobile unencumbered by any debt, $64,412.80 in illiquid retirement savings, $6,907.50 in liquid cash available for investment, $8,333.33 per month in gross work income, and de minimis child support.  The wife, on the other hand, left the marriage with an automobile unencumbered by any debt, $64,412.81 in illiquid retirement savings, and $100,104.12 in liquid cash available for investment, which would equate to $2,002.08 per year or $166.84 per month at 2 % per annum.  She also left with no job and no loving children to care for.

Oh, and the wife was also not awarded spousal support despite presently only having the possibility of earning $166.84 per month.  It did not bother discussing her need for spousal support, his ability to pay her spousal support or the standard of living they established during their long marriage together.  The court instead held in one concise sentence that she was barred from receiving spousal support as an adulterer and that it would not be a manifest injustice for her to not be awarded spousal support in this case.  The court did not even bother to discuss their relative economic circumstances or their respective degrees of fault in the downfall of the marriage.

This case, therefore, serves as quite the cautionary tale.  Adultery after the marital separation can still be an absolute bar to one receiving spousal support even if one suffers under the most egregious financial and emotional circumstances.  Caveat adulterer!  Adulterer beware![1]


[1] Truly, this decision is breathtaking.  The court spent almost the entire decision painting the husband as an absolute monster who caused the downfall of the marriage.  The court, nevertheless, allowed him to leave the marriage in excellent economic circumstances while leaving his jobless former wife to reenter a moribund job market 16 years after she last worked and without a college degree.  We are, unfortunately, left to speculate as to precisely why the court found no manifest injustice.  Was it because most of the husband’s spectacularly horrific behavior came after the wife took up with another man?  Was it because she did not have a need for spousal support because she was now living with her paramour?   Who knows . . .