• 22
  • February
    2012

It is not uncommon for a family law attorney to hear something like the following question from a client: "Now that my [spouse] and I have separated, is it ok for me to...umm...you know...date?" The questioner likely knows that adultery that occurs prior to separation can have negative consequences, but what about post-separation? Because the marriage is over anyway, post-separation adultery might not feel morally as bad as pre-separation adultery. But what does the law say?

The short answer is that post separation adultery can have serious negative consequences. It can give the other party grounds for divorce, regardless of which party caused the separation. It can also bar a party from receiving spousal support. Virginia Code § 20-107.1(B) mandates that a spouse who commits adultery will not be entitled to receive any spousal support absent a finding of manifest injustice as follows:

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 (1) of § 20-91 ["For adultery; or for sodomy or buggery committed outside the marriage"]. 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. (emphasis added)

Note that § 20-107.1(B) makes no distinction between pre-separation and post-separation adultery. And case law makes clear that adultery committed at any time prior to the divorce can bar a party from receiving spousal support. In fact, the Supreme Court of Virginia has held that a trial court's denial of spousal support to the wife as a result of her post-separation adultery was "mandated" by Code § 20-107.11. In that instance, the wife's adultery occurred 9 months after the parties' separation2. The Court's rationale was that:

the statutorily mandated waiting period...is designed primarily to give the parties an opportunity to reconcile and determine if they desire the separation to be final. The commission of adultery during that period by either party to a marriage in trouble is the one act most likely to frustrate and prevent reconciliation.3

But the italicized portion of § 20-107.1(B) quoted above provides an exception to the rule that adultery will bar a party from receiving spousal support ("the manifest injustice exception"). The Supreme Court of Virginia has interpreted the manifest injustice exception as requiring that the fact finder consider two separate variables: "(i) The relative degrees of fault and (ii) the economic disparities between the parties."4 The court must consider both variables5 and apply the clear and convincing standard set forth in the statute. A thorough analysis of case law interpreting and applying the manifest injustice exception is beyond the scope of this blog. But suffice it to say that whether manifest injustice dictates that the adulterous spouse may still receive spousal support is a case-by-case determination which is made based upon the unique facts of each case.

There is anecdotal evidence that some judges are more likely to invoke the manifest injustice exception when adultery occurs post-separation. Nevertheless, the only safe course of action for spousal support candidates is to avoid post-separation adultery. There is no authority to be cited in Virginia that should make a spousal support candidate feel secure that he or she can commit post-separation adultery without consequences. The Honorable James H. Chamblin's opinion in Kirtley v. Kirtley6 drives this point home. In that case, the evidence clearly showed that the wife's adultery did not cause the parties' separation or frustrate their efforts to reconcile. But Judge Chamblin granted the husband a divorce based on the wife's adultery, and declined to invoke the manifest injustice exception7, explaining as follows:

I understand present society and the need for companionship, but there is also dignity and reverence in the institution of marriage.... . The Husband's actions may have contributed to the failure of the marriage, but that did not give the Wife the right to commit adultery, deceive the Husband, and continue to collect support from him.8

Although Kirtley is a Circuit court case, it provides a cautionary illustration of the public policy of Virginia regarding post-separation adultery. In short, it matters to the court even if it does not matter to one or both parties and attorneys should advise their clients accordingly.


[1] See Coe v. Coe, 225 Va. 616, 623 (1983).

[2] Id. at 619.

[3] Id. at 620.

[4] Congdon v. Congdon, 40 Va. App. 255, 264 (2003)

[5] Id.

[6] 1997 Va. Cir. LEXIS 662

[7] The husband's annual income was $93,885.04, while the wife earned $25,668 per year.

[8] Id. at 5. (The husband had been paying wife temporary spousal support pursuant to a voluntary agreement.)