In the law, we like to use terms that other people don’t understand. “Manifest injustice,” “best interests of the child,” “continued cohabitation in a relationship analogous to marriage,” “material change of circumstances,” on and on, ad nauseum.
It can be frustrating, especially as a non-lawyer, to understand what all of the terms mean. In some cases, we don’t know ourselves – or, maybe we THINK we do, but ultimately, it often comes down to whether a judge says we meet a particular burden. You know – or not.
In many cases, there’s a lot at stake. In spousal support cases, that’s often especially true. If you’ve found your way here, you are probably eyeballs deep in your research. After all, no one starts out learning about adultery by searching the term ‘manifest injustice’ because it applies in such narrow circumstances.
Basically, to recap what you probably already know and what has led you here: adultery in Virginia is never guaranteed, but what IS guaranteed is that adultery (or, at least, the potential recipient spouse’s adultery) is a bar to spousal support UNLESS denial of spousal support would create a situation where ‘manifest injustice’ would result.
So, it’s a narrow application: (1) it’s a spousal support case, and (2) where the would-be recipient spouse has committed adultery.
Something that I do think you should know, though, is that there is a difference between proving adultery for the sake of getting your divorce granted on those grounds, which requires ‘clear and convincing’ evidence (another one of those terms that no one is sure what it means except the judge whose job it is to decide), and satisfying the judge that the adultery should bar the receipt of spousal support.
To say it again, more simply: it is easier to have your right to receive spousal support barred than it is to get your divorce finalized on the grounds of adultery.
At this point, I have more questions for you than answers. Does anyone know about the adultery? Can you keep a lid on it? Can you, maybe, end the relationship for now, while the case is pending, if no one really knows?
Is there evidence? Would he agree to pay spousal support anyway, to avoid litigation? Are we mostly in a quarrel over the amount and/or duration of support, or is he outright refusing to pay?
Spousal support cases are always complicated from a practical standpoint, because you have two spouses – one with money, and one without. It’s also complicated from a legal standpoint, because the law was recently changed making spousal support NOT taxable to the person receiving it and NOT tax deductible to the person paying it. It’s also modifiable more often than not in recent years, too, so you can’t just sit back for years and watch the dollars roll in without worrying about a change in circumstances later on down the line.
If you are able to secure a spousal support award, having it be money that isn’t taxed is pretty great for you. If, though, your spouse (who, I’ll say again, has a lot more money to spend litigating this than you do) is refusing to pay support because it isn’t tax deductible, and ESPECIALLY if you’ve already committed adultery as well, you’re up against a rock and a hard place.
Litigation is EXPENSIVE and incredibly time consuming. If your soon-to-be ex is determined to drive costs up to force your hand, he is pretty well situated to do so, especially if you’ve also committed adultery.
But there is an exception to the bar on spousal support: when manifest injustice would result. What is that, and how do you prove that it would be manifestly unjust to deny YOU the spousal support you would otherwise have been legally entitled to?
Well, it’s hard. And, ultimately, it’s up to the judge. This isn’t something that attorneys decide; it’s a question of the strength of arguments that can be made for and against manifest injustice, and may include expert witnesses, like doctors or financial planners, therapists, or others who might be in a position to know how bad your life could become (or refute how bad you say it could become, if they’re your husband’s witnesses) if you’re denied spousal support.
Probably, you’ll want to show that you’re incapable of working, or of earning very much. That you’re mentally or physically handicapped. That extreme poverty would result. The more dire the circumstances, obviously, the better – but, of course, that’s a double edged sword, because if it’s all that dire it’s hard to afford the attorney’s fees to fight for spousal support.
What constitutes manifest injustice is going to vary pretty dramatically from case to case and depend on what you can prove. We’re talking consequences more extreme than typical ‘run of the mill’ consequences from not receiving support. If you look at the criteria for receiving support, the first is the need and the ability to pay. So, in every spousal support case ever, the recipient spouse needed the money. It’s more than showing that you need the support; it’s showing that really, really bad things would happen without it.
I know that’s about as clear as mud, but, well, that’s how the cookie crumbles. I’m not a judge, so I don’t make those decisions. What works is going to vary dramatically from case to case. What won’t vary, though, is that to mount a defense in this type of case would almost certainly be incredibly expensive.
It’s worth having a talk with an attorney, though, about your circumstances, just to get an idea of whether you might be able to meet that burden of proof or whether there are any other options available to you to help get support in place. In general, I advise people to always utilize professionals to help them make decisions about how to move forward, and this is definitely one of those times. A consultation in our office isn’t free, but it’s fairly cheap to get information compared to what you could lose that you might otherwise have been entitled to receive if you don’t even ask or attempt to go after it.
For more information, schedule a consultation with one of our attorneys or give us a call at 757-425-5200.