I’m frequently asked: “what difference does adultery make in my divorce?” The answer, of course, is that it depends. Adultery is a bar to spousal support; if you commit adultery, you jeopardize your right to seek spousal support. Outside of the spousal support bar, however, “run of the mill adultery” may not make a significant difference in your case and often the costs associated with proving adultery equal or exceed the other financial benefits you might receive. Particularly egregious acts of adultery, however, may help you obtain a greater share of your family’s property, particularly in more conservative jurisdictions. Below I’ve included some slightly edited sections of a legal brief I recently submitted to a Northern Virginia Circuit Court (forgive the case citations). My case ultimately settled and my client received far greater than half the marital estate. I hope you find it helpful.
“The purpose of Code § 20-107.3 [Virginia’s property division statute] is to divide fairly the value of the marital assets acquired by the parties during marriage with due regard for both their monetary and nonmonetary contributions to the acquisition and maintenance of the property and to the marriage.” O’Loughlin v. O’Loughlin, 20 Va. App. 522, 522 (Va. Ct. App. 1995) (citing Robinette v. Robinette, 4 Va. App. 123 (1987)).
Though Virginia has no presumption in favor of an equal division of marital property, as a practical matter that is often where courts begin. “When fault is relevant in arriving at an award, the trial judge is required to consider it objectively, and how, if at all, it quantitatively affected the marital estate or well-being of the family”. Id. at 528; see also Gochenour v. Gochenour, 2003 Va. App. LEXIS 438 (Va. Ct. App. Aug. 19, 2003) (finding “the trial court is vested with broad discretion to divide equally the assets or ‘to make a substantially disparate division of assets’ pursuant to Code § 20-107.3(E).”)
Notably, “[u]nlike waste or dissipation of assets, ‘[c]onsideration of nonmonetary contributions to the well-being of the family under Code § 20-107.3(E)(1) requires no showing of an adverse economic impact.’ Watts v. Watts, 40 Va. App. 685, 699, 581 S.E.2d 224, 231 (2003); see also Attiliis v. Attiliis, 2009 Va. App. LEXIS 261, 17 (Va. Ct. App. June 9, 2009)(clarifying that nonmonetary contributions do not involve money thus an award for negative non-monetary contributions is separate and distinct from an award for waste or dissipation of assets). Rather, “the ‘wellbeing’ of the family relates to the effect on the family’s emotional welfare and condition.” Id; see also Ranney v. Ranney, 45 Va. App. 17, 46-47, 608 S.E.2d 485, 499 (2005)(explaining that factors and circumstances leading to the dissolution of the marriage may be considered even if those factors have no financial impact on the marriage).
In the matter sub justice, the Court should exercise its discretion to award Ms. Smith seventy-five percent (75%) of the marital assets due to Mr. Smith’s substantial, negative non-monetary contributions to the marriage and his fault in bringing about the dissolution of the marriage…
This was not “run of the mill” adultery; by his estimates, Mr. Smith had sex with Ms. Jones (the girlfriend) in various locations at his workplace “a couple times a week” for more than 5 years.
On September 1, 2010, he secretly signed a lease on an apartment located in Fairfax, Virginia and paid the expenses associated with that property from a secret account.
In 2013 Mr. Smith’s employer learned of his illicit relationship with Ms. Smith, placed him on administrative leave, and then terminated his employment. His employer subsequently accused him of committing various bad acts in furtherance of his romantic relationship and filed a lawsuit against him seeking damages in excess of $1,000,000.00.
Mr. Smith’s adultery and resulting termination from employment was devastating for the Smith Family. His employment was the family’s sole source of income; the family’s financial resources immediately dropped from more than $300,000 per year to $0.00. The Smith Family’s investment of time and energy into the [his employment] – the late nights and weekends Mr. Smith worked while his wife raised the parties’ children and managed the home-front – were squandered.
Mr. Smith’s income level has not (and may never) recover. Rumors of his sexual escapades at his employment and his difficulties at work spread through the local community. He acknowledges that “the auctions and every [employer] for a 50-mile radius” has heard rumors about his misdeeds. Moreover, friends, family and fellow community members were free to read about his alleged adulterous affair and resulting termination in a detailed article published in the local newspaper.
Mr. Smith’s behavior – its direct and in-direct consequences – constitutes a significant, negative non-monetary contribution to the well-being of this family. His selfish relationship with Ms. Jones has had catastrophic consequences for the Smith Family.
In determining an equitable distribution award, this Court must consider among other things: (1) “the contributions, monetary and nonmonetary, of each party to the well-being of the family;” (2) “the contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;” (5) “the circumstances and factors which contributed to the dissolution of the marriage…;” and (10) “such other factors as the court deems necessary and proper to the determination.” Virginia Code § 20-107.3(E)(1), (2), (5) and (10).
Mr. Smith’s behavior is similar to that of the husband in Watts. In Watts, “[t]he testimony of wife and [witness] proved a course of conduct by husband of meeting with Glass [the paramour] after work and staying out late.” Id. Wife testified that, “[d]uring the last five years of the marriage, nearly one-fourth of the time the parties were married, husband came home late and failed to help with family responsibilities.” Watts, 40 Va. App. at 700 (Va. Ct. App. 2003).
In Watts, the husband’s late-night activities foreclosed contact with his school-age son and required his wife to assume most family responsibilities and duties. The Court noted “during the ore tenus hearing, wife testified that, during ‘the last five years,’ husband ‘was never home.’ ‘On weeknights he never came home before 10:30 [p.m.]”. The wife testified that “she expended most of the effort including buying and preparing food, cleaning, gardening, doing yard work, caring for the pet, bookkeeping and budgeting, gift giving, child care and overseeing their son’s health, education and welfare.” Watts, 40 Va. App. at 699-700 (Va. Ct. App. 2003).
The facts in this matter are similar to those in Watts. Mr. Smith’s affair took him away from the family; he was away from the home for lengthy periods of time after hours or at his secret Fairfax apartment. He regularly and repeatedly told his Wife he was working late when in reality he was sleeping with another woman. While Mr. Smith was “working late,” Ms. Smith was dutifully tending to the parties’ two minor children and maintaining the home-front.
In Watts, the court recognized “that, while equitable distribution is not a vehicle to punish behavior, the statutory guidelines authorize consideration of such behavior as having an adverse effect on the marriage and justifying an award that favors one spouse over the other.” Id. (citing Smith v. Smith, 18 Va. App. 427 (1994)); see also O’Loughlin v. O’Loughlin, 20 Va. App. 522, 526-527 (Va. Ct. App. 1995).
Several Virginia cases have awarded one spouse a greater portion of the marital assets due to the negative non-monetary contributions and fault of the other spouse. See e.g. Robbins v. Robbins, 48 Va. App. 466, 481, 632 S.E.2d 615, 623 (2006) (upholding a 65/35 split in favor of husband where ‘wife’s romantic involvement with a co-worker was a major contributing factor and the precipitating event in her decision not to continue the marriage’)(internal quotation marks omitted); Watts v. Watts, 40 Va. App. 685, 702, 581 S.E.2d 224, 233 (2003)(affirming trial court’s award of ‘substantially disparate share of the marital estate to wife’ based, in part, on husband’s adultery and its effects on the family); O’Loughlin v. O’Loughlin, 20 Va. App. 522, 528, 458 S.E.2d 323, 326 (1995)(upholding 60/40 split in favor of wife where husband’s adultery ‘had a negative impact on the marital partnership’); and Hamad v. Hamad, 61 Va. App. 593, 604 (Va. Ct. App. 2013).
In Hamad v. Hamad, 61 Va. App. 593 (Va. Ct. App. 2013), the wife admitted her adultery and the trial court equitably distributed the marital property 60/40 in favor of the Husband. On appeal, the court noted that the wife’s adultery “by itself, would have fully justified the 60/40 ratio adopted by the court.” Id. Here, Mr. Smith’s conduct is more egregious not only in the sheer scope and volume of his adultery, but also in his refusal to admit adultery notwithstanding the weight of evidence against him. Mr. Smith obstinately exercised his Fifth Amendment right in his case, but immediately and repeatedly waived those rights in his lawsuit with his employer.
In Gochenour v. Gochenour, 2003 Va. App. LEXIS 438 (Va. Ct. App. Aug. 19, 2003), “the commissioner concluded that particular weight should be given to (i) the nonmonetary contributions of each party to the well-being of the family… and (iii) the circumstances and factors which contributed to the dissolution of the marriage.” The commissioner found husband’s “obsessive tendency to stall and conceal information from his wife during the marriage and from her counsel during discovery has added to the difficulty of retracing these contributions and getting this case to trial.’” Id. at 9-10.
Mr. Gochenour’s conduct also largely mirrors Mr. Smith’s. Among other things, Mr. Smith failed to fully disclose his bank accounts (he disclosed 2 of the family’s 5 bank accounts); he failed to fully disclose his real property interests (he disclosed 1 of at least 3 and perhaps as many as 6 real estate holdings); he failed to fully disclose the automobiles he has owned (he disclosed the Jeep Wrangler he sold, but not his Lotus Avora sports car); he failed to fully disclose his sources of income (he disclosed $7,148.64 in annual rental and interest income, but not the more than $145,000 he received from his Family Trust); he failed to disclose more than $30,000 in gifts he made to Ms. Jones over eight (8) months or the $80,000.00 “loan” he made to her for the purchase of a franchise; and he failed to disclose the value of his interest in the Family Trust (estimated to be worth more than $529,000).
Based upon “[Mr. Gochenour’s] almost single-handed destruction of the parties’ relationship over the course of the ten-year marriage,’ the commissioner found that wife ‘is entitled to a significantly larger share of the marital property.’ Therefore, he recommended ‘that 75% of the value of the marital property be allocated to [wife].’” Id.
On appeal, the Court noted:
[R]egarding the 75/25 division of marital property in favor of wife, the trial court also upheld the commissioner’s recommendation for the same reasons expressed in the commissioner’s report, namely, husband’s conduct in bringing about the dissolution of the marriage and husband’s failure to comply with discovery, thereby affecting the commissioner’s ability to properly classify all of the property and resulting in a ‘disproportionately large amount of separate property for him.’ Gochenour, 2003 Va. App. LEXIS at 9-10.
Ms. Smith should receive seventy-five percent (75%) of the marital property due to Mr. Smith’s negative nonmonetary contributions to this marriage, his role in its dissolution and his conduct during the course of this matter.
What kinds of assets are divided in a divorce?
The Commonwealth of Virginia recognizes three types of property: separate property, marital property and hybrid property. Generally, in a divorce all of the parties’ respective assets are identified, valued and allocated between the parties. This includes small things such as pots, pans and silverware; larger things such as furniture, cars, boats and planes; and even larger things such as businesses, real estate and retirement/investment accounts.
What is my separate property?
Separate property is generally considered to be any property that was acquired either prior or subsequent to the parties’ marriage or acquired by separate gift or inheritance during the marriage from anyone other than your spouse. In most cases, you retain your separate property. Under certain circumstances, however, you can transform (“transmute”) separate property into marital property.
What is marital property?
Marital property is generally considered to be any property acquired during the marriage by either party, regardless of who paid for it.
How is property divided?
In the Commonwealthof Virginia, the process of property division is called “equitable distribution.” In that process, the court, with the help of the parties’ attorneys, will identify all of the parties’ property, value it and divide it. Courts consider a number of factors in dividing property, such as:
Why is valuation important?
In many ways, the division of property is nothing more than the division of values. Determining a fair value of your property – whether it’s a closely-held business, an investment/retirement account or your marital home – placing an appropriate value on assets is crucial to achieving a truly equitable division. Attorneys often have the knowledge, experience, and resources (such as access to accountants, business and property appraisers and other professional experts) to help ensure you present a well-reasoned value to the court.
Jason A. Weis, Esquire – Curran|Moher P.C. – firstname.lastname@example.org – 3554 Chain Bridge Road, Suite 100, Fairfax, VA 22030 – 571-328-5020
Property Settlement Agreements (“PSA”), also called Separation Agreements, are typically omnibus, formal legal documents drawn to address the major tenants of an approaching divorce proceeding. Ideally, these post-marital agreements, tackle all rights and obligations arising from the parties’ marriage to one another. Those rights include, among other things, custody and visitation, child and spousal support and property division.
Married parties are free to contractually agree upon a resolution of their marital obligations at any time. Their agreement need not be formal; a “back-of-the-napkin” agreement may prove just as enforceable as a professionally drafted agreement. To be clear, however, PSAs are contracts and the same rules generally applicable to contracts apply to determine whether a PSA is valid. In most cases, where an agreement is complete on its face and unambiguous in its terms, a court will uphold it unless fraud, duress or unconscionability exists.
The vast majority of divorce cases resolve with the signing of a PSA. Why?
Though every agreement is separate and distinct, attorney written agreements often incorporate scads of boilerplate provisions that near-universally apply. At Curran|Moher,P.C., our firm PSA language is quite lengthy; it is the product of continuous optimization and revision, made over the course of several decades of family law practice. Over the weeks to come, I will address specific provisions that you might consider including in your PSA. If you have questions about the drafting of a property settlement agreement, please feel free to drop me a line.
Jason A. Weis, Esquire – Curran|Moher P.C. – email@example.com – 3554 Chain Bridge Road, Suite 100, Fairfax, VA 22030 – 571-328-5020
My experience and background reflect the hallmarks of success one must demand of a lawyer in Northern Virginia's legal landscape. As a native of this area, I have here focused my practice on providing sound and balanced representation to clients navigating the difficult legal waters of family law, including contested divorce, custody, visitation, spousal and child support, and equitable distribution. More >>>
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Thank you for taking the time to read this blog. I hope you find the information here as enjoyable to read as I find to write. Please note that reading this blog does not create a legal relationship between you and Jason A. Weis, Esquire or any other attorney associated with familylawva.com. Moreover, all postings on this blog are merely attorneys' commentary on the state of family law in the Commonwealth of Virginia. THE POSTINGS ARE NOT LEGAL ADVICE – if you have a legal issue or question, I strongly encourage you to contact a lawyer. I would be pleased to refer you to someone if I am able.