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Condonation evidence warrants dismissal of divorce complaint

The court grants husband’s motion to dismiss wife’s divorce complaint based on evidence of wife’s condonation and resumption of cohabitation, even though husband cannot “precisely identify and disclose with particularity and detail each and every act of adultery.”


“On April 6, 2020, Plaintiff/Wife filed for divorce alleging adultery, physical and mental cruelty and desertion. Defendant/Husband demurred and filed a counterclaim alleging cruelty and desertion. The Court entered a pendente lite order on May 8, 2020 establishing custody and visitation of the three minor children, exclusive use and possession of the marital home, temporary division of vehicles and other personal property, and the appointment of a guardian ad litem.

“Defendant now files a Motion to Dismiss the divorce action alleging that his Wife has forgiven him, condoned his adultery and that he and his Wife resumed cohabitation for a period of approximately four months. …

“In September, 2020, after approximately four months together, Wife indicated her desire to resume legal proceedings in support of her divorce action on the basis of adultery. She claims that in September of 2020 she learned of acts of adultery by Defendant, prior to their resumption of cohabitation in May, that she was previously unaware. She cites McKee v. McKee, 206 Va. 527 (1965), for the proposition that a party to a divorce based on adultery cannot condone the conduct unless the acts are disclosed.

McKee cites 17 Am. Jur., Divorce and Separation, Section 231, p. 416: ‘Where a defendant is guilty of several matrimonial offenses, and the plaintiff, when he forgives the defendant, knows of one of them but not of the others, the condonation operates as to the known offense; but because of the lack of knowledge the forgiveness does not bar an action based on the others.’”

Issue and ruling

“The issue before the Trial Court is whether the Defendant’s disclosure of adultery with three identified women and acknowledgement that there were others that he could not name nor recount is sufficient disclosure of those acts to constitute condonation.

“The Court finds that Defendant disclosed with particularity three instances of adultery. He stated that there were probably 6 to 8 additional instances of sex acts with other women. Presumably he either did not remember their names or he never knew them at all.

“In one instance, Defendant later recalled a name and he supplemented his disclosure with that information. Wife testified that she had been suspicious since 2014, that several people had told her over the years that her husband was unfaithful, but once he made the disclosure she forgave him 100%.

“Implicit in the requirement of full disclosure of acts of adultery to constitute condonation is the notion that a forgiving spouse is entitled to know everything in order to make an informed decision. However, also implicit is the disfavor of a court towards a party that willfully withholds or deceives his spouse with only a partial disclosure.

“In this case there is no evidence that Defendant deliberately withheld information concerning the identity of additional paramours. In spite of his clearly unfaithful and philandering behavior, his disclosure of three particular individuals by name with whom he engaged in adultery as well as his advisement of 6 to 8 other unidentified individuals, was sufficient to constitute the disclosure required under McKee.

“The Defendant’s motion to dismiss Plaintiff’s complaint for divorce based on adultery is granted. Plaintiff’s exceptions are noted.”

Coburn v. Coburn, Case No. CL20000755-00, Feb. 12, 2021, Montgomery County Cir. Ct. (Fleenor). Clifford L. Harrison for plaintiff, David Weaver for defendant. VLW 021-8-029, 10 pp.

VLW 021-8-029

Virginia Lawyers Weekly