Whether or not fault comes into consideration in Virginia when determining spousal support depends on whether that support is temporary or permanent. Fault grounds for divorce in Virginia include adultery, desertion, conviction of a felony, cruelty, causing reasonable apprehension of bodily hurt, and desertion. 

Temporary (pendent lite) Alimony

    Temporary spousal support is generally granted when the parties separate, at a pendent lite hearing and then is ended when the divorce is finalized. Fault is never a factor when it comes to temporary spousal support. Only financial considerations may be considered at this stage. A juvenile and domestic relations district court (“JDR court”) may award temporary spousal support. A circuit court may also award this type of support.

Permanent Spousal Support

Only circuit courts have authority to award permanent spousal support pursuant to Virginia Code § 20-107.1. When determining whether to award support for a spouse this statute requires a circuit court to consider, “the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision A (3) or (6) of § 20-91 or § 20-95.”  Subdivision (3) is conviction of a felony subsequent to the marriage and subdivision (6) is cruelty or desertion. Adultery is treated differently from other fault grounds for divorce because “no permanent maintenance and support shall be awarded from any spouse if there exits in such spouse’s favor a ground of divorce under the provisions of subdivision A (1) of § 20-91,” which is divorce based on adultery.  However, §20-107.1 provides that  a divorce court may still make an award of permanent alimony, irrespective of adultery, “if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.” Thus, adultery is a bar to spousal support subject to the limited escape clause, and other fault grounds for divorce are to be considered by a circuit court in determining whether to award alimony at all. 

Amount of Spousal Support

Virginia Code § 20-107.1(E) provides a list of factors that a court shall consider “in determining the nature, amount and duration of an award.” Factor number 13 provides the court with the statutory authority to consider marital fault in determining the amount of spousal support to be paid because it states, “such other factors, including the tax consequences to each party and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce, as are necessary to consider the equities between the parties” shall be considered. Thus, fault is a consideration for the trial court when determining not only whether to award alimony but also, once the court has determined that it will award alimony, it must consider fault in determining the amount.
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Editorial Assistance By: Michael Gee - Law Clerk

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