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Husband not entitled to spousal support

The court issues a final decree of divorce on the grounds that the parties have lived separate and apart, without cohabitation and without interruption for more than one year.

The court cannot grant wife’s counterclaim for a divorce based on cruelty because there is no corroborating evidence. Further, husband is not entitled to spousal support from wife.

“While Husband will be awarded a divorce on a one-year separation, Husband is not entitled to spousal support upon review of the statutory factors set forth in Virginia Code Section 20-107.1(E)(3). …

“Before the Court delves into the spousal support factors enumerated in Virginia Code Section 20-107.1, the Court laments its inability to grant Wife’s counterclaim to issue a divorce from Husband based upon Husband’s acts of cruelty pursuant to Virginia Code Section 20-91(A)(6).

“The Court remains certain of Husband’s cruelty as a ground of divorce. … Under Virginia law, however, corroboration of cruelty independent of party admissions remains necessary by statute in a divorce proceeding.”

No support award

“Considering all of the statutory factors, the Court found the following facts most relevant in its final disposition. …

“Plaintiff and Defendant were married for seventeen years. Based on the financials proffered before the Court, Wife contributed virtually all marital funds that resulted in marital property. Despite Wife being well beyond the primary earner, Plaintiff Husband acknowledged unilateral responsibility of the parties’ financials and actually exacerbated the parties’ martial debts further with unilateral spending and delinquent tax filings that Defendant Wife eventually took upon herself to satisfy using marital assets post-separation. …

“No substantial retirement exists for either party. Neither party has made substantial contributions to social security during their lifetimes. Since the parties’ separation on December 29, 2019, each party has lived independently. Both parties currently work full time. Husband endeavored to attain full time employment and has succeeded with the City of Newport News, while additionally working part time with Home Depot stores.

“Husband is capable of supporting himself, even attaining health insurance, a benefit lacking for a period during their marriage. Husband and Wife are 60 and 53, respectively. Both parties have not achieved prime retirement age. Neither party avers any mental deficiencies that necessitate leaving the workforce.

“Despite Husband’s testimony of poor physical condition and heart attack, this Court is not convinced of Husband’s inability to continue further employment. Further, Husband failed to provide any convincing evidence to the contrary.

“According to the pleadings and the evidence at trial, despite Wife’s status as breadwinner and Husband’s long record of either unemployment or underemployment, Husband was not even the primary caretaker of the family or home. …

“To Husband’s credit, the Court acknowledges that Husband may have provided support in Wife’s attainment of education to achieve her current profession; however, the Court is again at a loss in understanding what Husband actually sacrificed to allow Wife to achieve her career potential. …

“Wife provided $3,303.00 per month in pendente lite support for the last eight (8) months.”


“In the award of spousal support, the Court may consider fault, even with a one-year separation. … Wife testified to a pattern of Husband’s behavior throughout the parties’ marriage that the Court classifies as depraved. Husband mentally tormented Wife repeatedly throughout their seventeen-year marriage, where if corroborated, could arguably lead to a divorce based upon cruelty. …

“As the fact finder who weighs accorded testimony and the inferences drawn, the Court finds Wife credible and Husband’s denials not credible. …

“[T]his Court denies Plaintiff’s request for spousal support.”

Barth v. Barth, Case No. CL2000762M-03, April 15, 2021, Newport News Cir. Ct. (Mills) Kenneth B. Murov, Ashli B. Pack for the parties. VLW 021-8-065, 12 pp.

VLW 021-8-065

Virginia Lawyers Weekly