Adultery Creates a Bar to Permanent Spousal Support

Posted on May 26, 2021 by Katie Carter

Though spousal support is harder to get than ever, there are still a lot of cases where it is pretty desperately needed.

It’s pretty sexist to assume that the recipient of spousal support would only be the wife, or that wives in general need support to survive, but since I only represent women, I don’t have any cases where it’s the husband looking for support – though it could happen.
It’s already sort of an uphill battle to get support in place anyway. You have to satisfy a three pronged test, and it’s not easy!

Need versus Ability to Pay

First, there has to be a pretty significant disparity in your incomes. You have to demonstrate that you have a need, which basically means that you don’t have enough income on your own to meet your monthly obligations (and is, honestly, a fairly easy bar to meet).
The harder part of this prong of the test is that he also has to have an ability to pay. That doesn’t mean that he has oodles of money (who does, anyway?) but mostly that he has to earn significantly more than you. The court will take debt and other obligations into consideration (just like it will in for you), but the main criteria is whether there’s a disparity.

If you earn the same amount of money or he earns less, he will not have to pay spousal support, even though that may mean that you have more expenses than you can reasonably manage on our own.

The statutory factors

Here’s where the law comes in: when the court determines an award of spousal support, the court looks to the statute, which has 13 established factors that influence whether support will be awarded.

This is where we consider things like the fact that you left your job to raise the children, the standard of living established in the marriage, and any factors that mean that your ability to earn an income on your own is diminished (like, your disability, the fact that you’ve been out of the workplace for however many years, or that you don’t have the education, skills, or training to earn much of an income on your own).

You can read all the factors here, but, suffice it to say, these often allow a woman to shine because they take into account all the non-monetary work that a wife does to support the family.

The duration of the marriage

Spousal support is based on the fact that the parties of a marriage have relied on each other for so long that to withdraw the support from one spouse is often unfair, and can leave them unable to support themselves. For stay at home moms, or wives who’ve cut back their employment to support the marriage and the family, this is especially prevalent. You can’t just jump back into your old job or go immediately into a super well paying one, especially if you’ve been out of the workforce for awhile.

The longer the marriage, the worse off a partner who has been unemployed or less employed partner will be. The longer the marriage, the more you depend on each other, the more out of date your education and skills become, and the more important that gap on your resume is.

The shorter the marriage, though, the less important the support that you derive from your spouse is. For a marriage of just a couple of years, even if one was earning significantly less than the other, the ability to go back and ultimately earn a decent wage is more realistic. Maybe there are factors involved that make it more challenging; it’s obviously really fact specific. But suffice it to say that there’s a general belief that, the longer the marriage, the longer the award of spousal support.

There’s no hard and fast rule, but you can read here about support in short, mid-length, and long-term marriages for more information.

Adultery and Spousal Support

Even if you win big at all three of the prongs of the spousal support test, and it seems clear that a court would award spousal support to you, adultery can ruin everything.

Under Virginia law, there is an absolute bar to an award of spousal support in a case where the recipient spouse (the one who would receive spousal support) has committed adultery.

If the paying spouse committed adultery, he would be barred from spousal support too – but it wouldn’t matter, because if he’s the paying spouse he’s the higher earner, so he wouldn’t receive support anyway. It’s not that the law doesn’t apply equally to the two of you; adultery is still a misdemeanor in Virginia and therefore a criminal offense. It’s just that, as far as spousal support is concerned, he wouldn’t qualify to receive it anyway – so, in a sense, it doesn’t really make a difference to him support-wise.

You can have all those things going for you, and still not get spousal support if you’ve committed adultery, so that can be a pretty expensive thing to make. When you combine this with the fact that he’s already the higher wage earner and can outspend you when it comes to costly litigation, your ability to defend yourself is already diminished.

Are there any exceptions to the bar on spousal support in an adultery case?

I hear you; just because you’ve committed adultery (or he’s alleging that you have) doesn’t mean that you don’t have a DESPERATE need for spousal support.

There is an exception to the rule, in that spousal support could be awarded in a case where “manifest injustice” would result if spousal support were not awarded. It’s a pretty high bar to meet; I mean, just look at the words! “Manifest injustice!” That’s pretty intense.

If I’ve committed adultery but I desperately need spousal support, what should I do?

You’ll want to consult with an attorney right away to discuss your unique situation. Ideally, you wouldn’t breathe a word of your affair to anyone – not a friend or therapist or anyone. The more people who know, the greater the chance that it’ll get out.

It may be that the cat’s already out of the bag, and, in that case, you may be in for a tougher case. It might be possible to prove manifest injustice, but it’s not easy to do. You’ll want to talk to someone one on one as soon as possible to figure out whether any of the facts you could introduce would rise to that level.

Be prepared, too – these days, spousal support isn’t taxable to you or tax deductible to him, the way it was in the olden days (you know, way back in like 2017) – so his “reason” or “consolation prize” for paying support is already gone. These cases are often difficult (translation: expensive) to litigate and defend against. Without the silver lining of the deductibility piece, and in full confidence of his increased ability to pay for legal representation, he may be preparing for a fight.

For more information or to schedule a consultation to discuss your spousal support award, give our office a call at 757-425-5200.