“Fault”–Take 2: Now Weaponized


In an earlier blog, I discussed the impact of what is called “fault” on the outcome of a divorce. See blog entry of May 2, 2016. Fault refers to what caused the marital breakup. It can be the formal “ground” for filing a Complaint for Divorce in the first place––such as adultery, cruelty, or desertion––or it can be more generic.

For example, a husband may not have enough evidence to prove his wife physically assaulted him (and thus show cruelty), but if he has evidence that she was relentlessly mean and heartless over time such that no marriage could reasonably be expected to survive it, then a judge will consider such evidence in deciding how to divide marital property.

Who is at Fault? 

Three decades ago, things were different. Fault required proof that it caused some tangible, specific harm to the marital estate. See, e.g., Aster v. Gross, 7 Va. App. 1 (1988). In other words, the harm had to be economic. Example 2: Suppose a wife wants out of a marriage to an extremely alcoholic husband who is emotionally cruel to her. Without some evidence of financial harm, a court back then would not base property distribution on these facts alone.

Now, let’s suppose the hard-drinking husband fancies himself a handyman, and in his stupor he botches a number of attempts at home improvement that actually reduce the value of the marital residence. Would that allow a court to connect the dots between husband’s drinking and the awarding of marital assets? Yes, because the cause of the dissolution of the marriage (the drinking), caused actual harm to the marital estate (the value of the house). The fault had economic consequence.

Gradually, the law shifted to encompass non-economic harm, as well. See, O’Loughlin v. O’Loughlin, 20 Va. App. 522 (1995). Example 3: A husband is so emotionally abusive that the wife and children require years of therapy, with one of them being institutionalized. The damage, though devastating, was not economic. This kind of intangible harm can indeed be considered in the financial outcome of the divorce. See, Smith v. Smith, 18 Va. App. 427 (1994).

Today, no actual harm is required. Fault is its own negative consequence. A third example: Wife has an affair, admits it, then reconciles with her husband. They go to couples therapy, they exchange notes with each other in which husband forgives her and confesses he was cold to his wife and “drove her to it.” A year later, however, they separate, as trust issues still loom and the parties once again grow cold. Six months into the separation, wife begins a new sexual relationship, and husband learns of it.

Technically, wife has committed adultery, but because it is post-separation it cannot logically be the “cause” of the breakup. Nonetheless, will a court still consider it? Yes.

How can that be? There is no economic harm here, or even non-economic harm. In fact, there is no harm at all.

If the husband convinces a judge that the post-separation relationship relates back to his suspicions about his wife years before, which in turn suggests the reconciliation was insincere, and that the trust issues resurfaced with reason, then the court can conclude that the wife’s general infidelity has been consistent, the reconciliation was bogus, and the breakdown of trust caused by wife’s conduct led to the dissolution. And if so, all of this will be considered in how a judge fashions the awards of property.

So, What’s New?

The Virginia General Assembly this past session modified the language of Va. Code 20-107.1, the spousal support statute. The change, which takes effect July 1, 2016, adds to the list of “factors” in Paragraph E language mandating that a judge must consider the “circumstances and factors that contributed to the dissolution” when deciding the amount and duration of spousal support. Previously, the cause of the dissolution was not included on this list.

How significant is the change? Some lawyers and judges will say not very. I disagree. Here’s why.

Notice from the above hypotheticals and cases that the law limited itself to concern over the link between the cause of a divorce and its effect on the distribution of assets, not on spousal support. Until now.

Property and support are very different from each other. Virginia is an “equitable distribution” state when it comes to property. We classify assets as to whether they are marital, separate, or some degree of both, we determine their value, and we distribute them equitably, i.e., according to what is fair or just. And “just” includes, among other things, consideration of the cause of the divorce. See Va. Code 20-107.3.E(5).

Spousal support, on the other hand, is “rehabilitative”––or that was the theory when the statute was written almost 35 years ago. Support was supposed to put the receiving spouse back on his or her feet, to be able to live independently to the extent possible. It was designed to rehabilitate the receiving spouse, not punish the payor. Thus the spousal support statute, Va. Code 20-107.1, did not contain the equivalent of Factor No. 5 of Paragraph E in the equitable distribution statute, Va. Code 20-107.3. The payor spouse may have been an incorrigible cur, but it would have no effect on the amount or duration of any spousal support. Curs were dealt with by the equitable distribution statute.

But there is another wrinkle. The spousal support statute prior to this latest change contained this sentence: “The court, in determining whether to award support a maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce …” Va. Code 20-107.3.E. Pay attention to the word “whether.” A court could look to fault/cause in deciding whether to award spousal support, but not how much or for how long.

Why is this important?

Because Paragraph B of that same statute says if the spouse seeking support is found to have committed adultery, then that spouse is prohibited from receiving support, with narrow exceptions.

Therefore, the only reason for a judge to consider fault would be to decide either 1) if one of the parties is precluded from receiving it, pursuant to Paragraph B, or 2) if a spouse who might not otherwise qualify for support should receive it. The adultery ban in Paragraph B is strict, leaving little to the judge’s discretion. The “whether” sentence in Paragraph E broadens B a little; it allows a judge leeway to preclude support to a spouse for desertion, or abuse, or for being sentenced to prison for a felony, as well.

But whereas the Paragraph B ban on support to an adulterer is regularly invoked, the “whether” sentence in Paragraph E of 20-107.1 rarely, if ever, cited. What about the inverse, deciding whether an otherwise unqualified spouse should receive support? There are no appellate cases squarely on this point, which makes sense because a judge can go straight to the listed “factors” (which he or she is mandated to consider anyway) and award support on that basis alone. The “whether” sentence of Paragraph E is thus redundant for purposes of granting spousal support.

With the latest amendment to the spousal support statute, however, a trial court must now take cause into account in determining the amount and duration of the award. This means support, just like property distribution, can be punitive. And, as a result, it means that in almost all contested divorces, fault will be litigated more fervently, as the parties scurry to define a bad guy.

At minimum, the statutory change solemnizes fault’s 20-year pendulum swing from relative insignificance to critical in support cases. Fault has now become weaponized.

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