Virginia Spousal Support: The Manifest Injustice Exception Examined

Mundy v. Mundy, Record No. 1025-15-4 (Va. Ct. App. 2015), is a brief, direct, and unsparing look at the manifest injustice exception to the bar on a spousal support award to an adulterous spouse.

The manifest injustice exception is stated as follows in Mundy:

            [T]he court may make [a support] award notwithstanding the existence of [adultery] 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.  Va. Code § 20-107.1(B).

Let’s first look at the respective degrees of fault in this case.  Regarding the husband, he was plainly not at fault.  In fact, he seemed pretty great.  He made nearly all of the monetary contributions to the marriage that netted the parties more than a few million dollars in assets.  He also dedicated almost all of his non-work hours to the family.  He took the family on vacations, took them to nice restaurants, and facilitated his wife’s interests in the arts and her rock band.  The wife, on the other hand, was decidedly at fault.  She had adulterous affairs with a few people, which directly led to the dissolution of the marriage.

As for the relative economic circumstances of the parties, the husband was going to leave the marriage with a nice job, an expensive house, and good savings.  The wife was also going to leave the marriage with a nice nest egg, including almost $400k in cash and $1.3 million in retirement savings.  Also, she was going to leave the marriage with the husband’s contractual agreement that he pay all of the children’s collegiate expenses, which included medical school for one child and at least an undergraduate education for the other child.  All in all, the wife was going to leave the marriage in a pretty nice economic position even if it took her some time to get a decent job after having been out of the work force for many years.[1]

Given these facts, the trial court held that the difference in each spouse’s earning capacity was so great as to constitute a manifest injustice and accordingly awarded the wife an unknown sum of spousal support.  On appeal, the Virginia Court of Appeals reversed.  In fact, it reversed as if this was the easiest decision ever.  It summed up its reversal with this tidy little dagger: “[i]t would be a manifest injustice to require a faultless spouse to pay support to a work-capable, millionaire spouse, guilty of repeated acts of adultery with several co-respondents.”

So what did we learn?  I guess we learned that work-capable, millionaire spouses, guilty of repeated adulterous acts should not expect spousal support.  The manifest injustice exception is not for them.

[1] Wife had a mechanical engineering degree from Rice University, and presented to the vocational expert in the case as someone with extensive skills that were transferrable across various industries even despite her time out of the workforce.