Wedding Bells, Paramours and Your Checkbook: Did the General Assembly Inadvertently Lower the Bar for Spousal Support for an Adulterous Spouse?
In 1998, Virginia joined forty-eight other states in allowing rehabilitative alimony when the General Assembly amended Title 20-107.1. The 1998 Amendments marked a radical sea change in family law throughout the Commonwealth. For the first time a court could award defined duration “rehabilitative” spousal support to prevent divorcing spouses from becoming “the insurers of one another’s continued economic viability.” The new subsection (C) provides that “[t]he court, in its discretion, may decree that maintenance and support of a spouse be made in periodic payments for a defined duration.” The 1998 Amendments did not, however, provide for the same statutory bar for spousal support seen in subsection (B) for adulterous spouses.
Section 20-107.1(B) provides that no permanent award of spousal support may be awarded to an adulterous spouse, unless it is shown by clear and convincing evidence that a denial of such support constitutes a manifest injustice. The manifest injustice bar serves as a hurdle for adulterous spouses seeking alimony as a court may only arrive at such a determination after considering the respective degrees of fault during the marriage and the relative economic circumstances of the parties. The statutory bar to support for an adulterous spouse is reflective of the common law where adulterous spouses were awarded no support.
The new subsection (C)’s absence of a statutory bar for support to adulterous spouses seems to have been an intentional departure from the common law. After all, the General Assembly expressly disclaimed awarding permanent support to an adulterous spouse in subsection (B), absent a showing of a manifest injustice. Logically then had the General Assembly intended to include the same hurdle for adulterous spouses for all types of maintenance and support it would have included a general provision subjecting all support to the provisos of § 20-91.
A survey of all cases decided since 1999 that cited § 20-107.1 reveals, however, that courts have generally not departed from the traditional common law and statutory bar awarding spousal support to an adulterous spouse absent exigent circumstances. In Congdon v. Congdon the Court of Appeals affirmed, on different grounds, the trial court’s awarding of spousal support to an adulterous wife based on the manifest injustice exception. The court agreed with the trial court that despite the wife’s adultery, the husband’s “twenty-year showing of base and profane behavior, not only with his wife, but with his children” was the impetus for the dissolution of the marriage. The court also agreed with the trial court that the extreme disparities in the economic circumstances of the husband and wife warranted awarding the wife permanent spousal support. Interestingly, the Court of Appeals failed to note any difference in analysis obtained as the support awarded was under the rehabilitative alimony section of the code which had no express adultery bar to spousal support contained in the rehabilitative alimony provision of § 20-107.1. The court’s analysis focused exclusively on determining whether a manifest injustice existed to award support, and did not note the difference in the language in the statute relating to a defined duration award of support.
The Court of Appeals followed Congdon a year later with Porter v. Porter and awarded spousal support to the wife despite her post-separation adultery. The court again affirmed the trial court’s award of permanent spousal support to an adulterous wife based on a finding of manifest injustice. Finding that the husband’s egocentric obsession with his personal finances contributed to the dissolution of the marriage, the court agreed with the trial court that the “wife was not more culpable than husband in dissolving the marriage.” The court further found that the husband’s majority interest in a business versus the wife’s prior experience as a clerk at a convenience store warranted permanent spousal support. Once again, the court’s analysis focused entirely on the whether the factual record below satisfied the clear and convincing standard and not whether adultery serves as a bar to rehabilitative alimony.
Congdon and Porter are illustrative of the wider trend of courts analyzing questions for support to an adulterous spouse under subsection (B) with its manifest injustice standard and not under the broad terms of subsection (C). Nevertheless, some courts have confused the standards and have applied subsection (B)’s manifest injustice exception when awarding defined duration awards of spousal support. For example, in Heiche v. Heiche the trial court awarded rehabilitative alimony to an adulterous wife for a period of four years. The court sustained the wife’s objections to the chancellor’s findings that her adultery was the reason for the dissolution of the marriage. The court instead found that the husband’s cruelty to the wife after discovering her infidelity led to the relationship’s termination. Interestingly, the court in awarding defined duration spousal support engaged in the manifest injustice analysis in subsection (B) and considered the relative degrees of fault and economic circumstances of the parties even though neither tool is referenced in 20-107.1 (C).
Heiche represents the exception; courts have generally analyzed an award of support to an adulterous spouse under the permanent support analysis in subsection (B). In practice, courts have not interpreted the General Assembly’s failure in 1998 to include a general bar to support for adulterous spouses as departing from the common law. Courts have instead steadfastly adhered to the manifest injustice analysis in subsection (B). Most importantly, it appears no litigant has put the issue before the Court in a reported decision.
 Report of the Family Law Section of the Virginia State Bar on Rehabilitative Alimony and the Reservation of Spousal Support in Divorce Proceedings, House Document 55 (1997) at 8.
 § 20-107.1(C).
 Va Code Ann. § 20-107.1(B); see also § 20-91 (mandating that grounds for divorce may be found for adultery, sodomy, or buggery outside the marriage).
 § 20-107.1(B); see Coe v. Coe, 225 Va. 616 (1983) (holding that testimony showing that wife stayed alone overnight at another man’s house was sufficient to prove the wife’s adultery and thus barring her claim to permanent support).
 See generally Mary Frances Lyle & Jeffrey L. Levy, From Riches to Rags: Does Rehabilitative Alimony Need to be Rehabilitated?, 38 Fam. L.Q. 3, 4-6 (2004) (surveying the history of alimony).
 40 Va. App. 255 (2003).
 Id. at 264-67 (holding that the trial court erred in considering the two manifest injustice factors in § 20-107.1(B) disjunctively rather than conjunctively).
 Id. at 266 (“The law does not excuse, condone, or justify [the Wife’s] infidelity. But neither does the law turn a blind eye to [the Husband’s] behavior, which multiple witnesses described as both unrestrained and longstanding.”).
 Id. (finding that the husband’s $250,000 annual salary and the wife’s $10/hour position constituted the extreme disparity).
 Porter v. Porter, No. 2907-03-2, 2004 WL 1556000 (July 13, 2004 Va. Ct. App. 2004).
 Id. at *4.
 See e.g. Winebarger v. Winebarger, No. 2913-02-1, 2003 WL 21910936 (Va. Ct. App. Aug. 12, 2003) (reversing the trial court’s award of permanent spousal support finding that the trial court failed to consider the relative degrees of fault among the parties); Calvin v. Calvin, 31 Va. App. 181 (1999) (affirming the trial court’s awarding of permanent spousal support to adulterous wife based on the wife’s disability and economic circumstances).
 No. 186757, 2004 WL 1879209 (Va. Cir. Ct. July 21, 2004).
 Id. at *2.
 See generally Foeman v. Ketchum, No. 2092-98-4, 1999 WL 1129731 (Va. Ct. App. July 27, 1999) (affirming award of permanent spousal support to adulterous wife because her extra-material relationship was not the primary cause of the dissolution of the marriage).