By Alexander T. Lewis of Duff & Kronfeld, P.C. posted in Family Law on Wednesday, July 13, 2016.
In Virginia, if the divorce is based on one spouse’s adulterous behavior, the cheating spouse is normally precluded from receiving spousal support by statute.
However, that is not the end of the analysis as the cheating spouse may be entitled to some type of spousal support if the court determines from clear and convincing evidence that failing to award support would amount to a “manifest injustice.”
In determining whether a prohibition of spousal support for the cheating spouse would constitute a “manifest injustice,” the court is required to consider: (1) the respective degrees of fault during the marriage; and (2) the relative economic circumstances of the parties. The purpose of allowing for this exception is to prevent leaving a spouse financially destitute despite his or her adulterous behavior.
In Congdon v. Congdon, The Virginia Court of Appeals affirmed the trial court’s decision to award the wife spousal support despite her concession that she had committed adultery during the marriage. The Court determined that despite the wife’s adultery, the husband’s long history of “base and profane behavior” toward the family contributed to the dissolution of the marriage. Moreover, the Court determined that there were “extreme disparities in [the parties’] relative economic situations” that would result in a “manifest injustice” if the wife was denied spousal support.
In contrast, in Mundy v. Mundy, The Virginia Court of Appeals recently clarified this “manifest injustice” exception, finding that the wife’s adultery was “the primary reason for the destruction of the marriage.” Furthermore, the Court found no-basis for awarding the wife spousal support based on her economic situation as she received approximately $1.8 million in assets from the parties’ settlement agreement.
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