Virginia statutes regarding divorce provide for “no-fault” divorce based on spouses living separate and apart for the time period set forth in the Va. Code § 20-91 – one year unless they do not have minor children in common and have a written agreement resolving all other issues, in which case six months separation is sufficient. Fault grounds for divorce in Virginia include adultery, desertion, conviction of a felony, cruelty, causing reasonable apprehension of bodily hurt, and desertion.  Regardless of the grounds for divorce, a party may request an award of pendente lite or temporary support prior to the divorce being made final and/or an award of permanent support upon entry of the Final Decree of Divorce. What impact will marital fault have on the Court’s decision regarding temporary spousal support or permanent spousal support?

Temporary Spousal Support

Temporary spousal support may be ordered by a Circuit Court in a divorce action or by a Juvenile and Domestic Relations District Court (“JDR Court”) upon petition of a spouse after the parties separate.  Virginia Code § 16.1-241(L) provides the statutory authority for a JDR Court to order spousal support and also provides that any order entered by the JDR Court is not res judicata (binding) on the circuit court. Since the Circuit Court can, in its final decree provide for permanent alimony, the spousal support ordered by the JDR Court is by definition temporary. Virginia Code § 16.1-278.17:1 provides that for cases where the parties combined gross monthly income is $10,000 or less, the presumptive amount of spousal support shall be determined by the JDR Court by deducting 58% of the payee spouse’s gross monthly income (in cases where the parties have minor children in common) from 28% of the payor’s gross monthly income. When there are no minor children in common, the presumptive amount of alimony is the difference between 30% of the payor’s gross monthly income and 50% of the payee spouse’s gross monthly income. The court may deviate from the presumptive amount “for good cause shown, including any relevant evidence relating to the parties’ current financial circumstances that indicates the presumptive amount is inappropriate.” Va. Code § 16.1-278.17:1(D). Thus, the JDR Court’s award of spousal support is not affected by fault but only by financial evidence.

Similarly, fault is not a factor that should be considered by a Circuit Court in making an award of pendente lite alimony.  The statutory authorization for a Circuit Court to makes a temporary award of spousal support is found in Virginia Code § 20-103.   That statute provides the court with the power to “compel a spouse to pay any sums necessary for the maintenance and support of the petitioning spouse.” Va. Code § 20-103(A). Pendente lite orders “shall have no presumptive effect and shall not be determinative when adjudicating the underlying cause.”  Va. Code § 20-103(E).  The statute does not address or refer to fault, only to the “sums necessary for the maintenance and support of the petitioning spouse.” Accordingly, courts interpreting the statute have held that fault is not a consideration when a court is determining temporary alimony.

Whether in a JDR Court or a Circuit Court, fault is not an appropriate consideration when temporary spousal support is determined.

Effect of Marital Fault on Obtaining an Award of Permanent Spousal Support

Only the Circuit Court has authority to award permanent (meaning not temporary) spousal support pursuant to Virginia Code § 20-107.1.  That statute requires the Circuit Court to consider, when determining whether to award support for a spouse, “the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision A (3) or (6) of § 20-91 or § 20-95.”  Subdivision (3) is conviction of a felony subsequent to the marriage and subdivision (6) is cruelty or desertion. The statute treats adultery differently from other fault grounds for divorce.

Whether the divorce is entered on the grounds of adultery or not, “no permanent maintenance and support shall be awarded from any spouse if there exits in such spouse’s favor a ground of divorce under the provisions of subdivision A (1) of § 20-91.”  Code § 20-91(A)(1) is divorce based on adultery.  Although adultery is a bar to obtaining a permanent award of spousal support, the General Assembly also provided a narrow exception to the bar. A divorce court may still make an award of permanent alimony “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.”

Thus, adultery is a bar to spousal support subject to the limited escape clause, and other fault grounds for divorce are to be considered by the Circuit Court in determining whether to award alimony at all.  Once the court has determined to award alimony, does fault bear on the amount of spousal support awarded?

Fault and the Amount of Permanent Spousal Support

Per Virginia Code § 20-107.1(E), the court shall consider the following factors “in determining the nature, amount and duration of an award”:

1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;

2. The standard of living established during the marriage;

3. The duration of the marriage;

4. The age and physical and mental condition of the parties and any special circumstances of the family;

5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;

6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

7. The property interests of the parties, both real and personal, tangible and intangible;

8. The provisions made with regard to the marital property under § 20-107.3;

9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;

10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;

11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;

12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and

13. Such other factors, including the tax consequences to each party and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce, as are necessary to consider the equities between the parties.

The last factor provides the court with the statutory authority to consider marital fault in determining the amount of spousal support to be paid.  The court shall consider “the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce,” as may be “necessary to consider the equities between the parties. Thus, fault is a consideration for the trial court when determining not only whether to award alimony but also, once the court has determined that it will award alimony, it must consider fault in determining the amount. How marital fault might affect the amount of the awarded spousal support is too complex and fact specific to discuss here, but suffice it to say that every case is different and the amount of spousal support is within the discretion of the trial court.