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Adultery can be used to set support

alimony_mainEven though adultery was not raised by a husband in his initial divorce pleadings, the husband could use allegations of adultery to argue for lower alimony payments, the Court of Appeals of Virginia says.

The court’s threejudge panel held it was error for the trial court to block evidence of adultery for any purpose because the husband did not raise the issue of adultery in his answer.

The decision could open the door for more contentious evidence in divorce practice, one family law attorney says.

The Jan. 14 published opinion written by Judge Mary Grace O’Brien is Chaney v. Karabaic-Chaney (VLW 020-7-008).

‘Broad statute’

The parties pointed to statutory language to support their positions. The husband cited Va. Code § 20-107.1(E) which provides that a judge considering support “shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce.”

The wife pointed to Code § 20-107.1(B) which generally bars a support award when granting a divorce on adultery grounds.

The three-judge panel agreed with the husband. Reading the statute as a whole, section E “commands a court to consider evidence of adultery when awarding spousal support, even if the proponent of the evidence did not plead adultery as a ground for divorce or as an affirmative defense,” O’Brien wrote.

The evidence would help determine “the respective degrees of fault during the marriage,” the court said.

The panel said the statute’s use of the word “including” implies there may be other admissible evidence that contributed to the dissolution of the marriage, such as physical violence or a romantic relationship short of adultery.

The examples cited in the statute “do not operate to constrict an otherwise broad statute contemplating that numerous acts” may contribute to end a marriage, the court said.

The court reversed and remanded the case for rehearing on the issue of spousal support.

Fault-finding concern

The decision will encourage divorce attorneys to bring evidence on all sorts of behavior that could have contributed to the dissolution of marriage, said Roanoke family lawyer Nanda E. Davis, who was not involved in the case. That may not always be a positive development, she adds.

Such evidence could include everything from heavy drinking and verbal abuse to refusal to help with chores or withholding sex, none of which would be grounds for divorce without something approaching the level of cruelty.

“Without the requirement that the factors presented constitute grounds for divorce, or even be put in pleadings, some divorce practitioners may be able to surprise an adversary with this evidence at trial. Some attorneys may want to consider adding an interrogatory asking for the factors the opposing party will ask the court to consider in awarding spousal support,” Davis said.

“Personally, I worry that  Chaney v. Karabaic-Chaney  will only encourage parties to further dwell on the real and perceived slights of their spouses,” Davis continued. “The more evidence of fault and wrongdoing that is presented in court, the harder it is for people going through a divorce to move on with their lives,” she said.

“The trend of focusing on fault and wrongdoing is especially worrisome in divorce cases with minor children, because these parties will need to co-parent with each other for years after their divorce is final.  Presenting additional evidence on why a spouse has failed you leads to resentment, anger and hurt, and makes it very hard to forget what happened in court to work together for the best interest of children,” Davis said.