Adulterous Spouse May Still Receive Spousal Support: The Manifest Injustice Exception Explained

As we have discussed previously, adultery can impact your divorce case in many ways. If your ex-spouse can prove that you cheated, the judge may refuse to award you any alimony or spousal support whatsoever!

There is an exception to a complete bar of spousal support known as the “manifest injustice exception.” In a recently-issued appellate opinion, the Virginia Court of Appeals addressed the exception.

Section 20-107.1(B) of the Virginia Code states that:

“[T]he court may make [a spousal 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.”

In an effort to determine whether the manifest injustice exception applied, the trial court looked at the husband and wife’s respective degrees of fault. The evidence showed that the husband was a great father and spouse. He spent his free time with the family, took them on vacations, made most of the family’s income and even supported his wife’s hobbies.  However, the wife cheated on the husband on more than one occasion, which directly led to the couple’s divorce.

While the wife was clearly at fault, the court still had to examine the relative financial circumstances of each party under the statute. Although the wife would need to re-acclimate herself to the workforce following her divorce, both husband and wife would leave the marriage with over $1 million in assets. Furthermore, in the couple’s marital settlement agreement the husband agreed to pay for their children’s college expenses including medical school for one child and undergraduate tuition for the other.

Despite this evidence, the trial court awarded the now ex-wife monthly alimony payments. The appellate court had no trouble reversing that award.

The court, finding that the manifest injustice exception did not apply and the ex-wife was not entitled to alimony, simply stated “[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.”

Though an exception to the bar on alimony to cheating spouses exists, the above case demonstrates that Virginia courts will not be so lenient when applying the exception. Of course, everything depends on the unique facts of your case. Here, the relative fault of the parties was pretty clear.

It may not always be that way. This is why you should consult with a knowledgeable family law attorney right away if infidelity becomes an issue in your relationship or divorce.

If you are going through a divorce or any other family law issue, the DiPietro Family Law Group is here to help. Our qualified family lawyers have decades of experience handling all family law matters and will give you the time and attention that you deserve.

Contact the DiPietro family law attorneys today to schedule a consultation with a caring professional at (703) 370 – 5555.

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