Beyond Fifty Shades Of Grey Making The Most Of Adultery

20 Pages·2013·1.24 MB·English

Virginia Trial lawyers associa Tion 2013 conVenTion
Beyond Fifty Shades of Grey:
Making the Most of Adultery
Evidence for Spousal Support
and Equitable Distribution
Moderator:
The Honorable Michael C. Allen
The McCammon Group
www.mccammongroup.com
Panelists:
The Honorable Thomas B. Hoover
Ninth Judicial Circuit
New Kent Circuit Court
P.O. Box 98
New Kent, VA 23124
[phone]
[email protected]
Raising
the Bar
Susan Massie Hicks
Virginia Trial Lawyers Association
The Susan Hicks Group, PC
54th Annual Convention
Three Flint Hill
March 21-24, 2013
3201 Jermantown Rd., Suite 200
Colonial Williamsburg
Fairfax, VA 22030-2875
[phone]
[email protected]
www.susanhicksgroup.com
Beyondthe ttFiftyShades ofGray"- MakingtheMostofyourAdulteryEvidenceat Trial
Virginia Trial Lawyers Annual Convention
March 21-23, 2013
Melanie CorbinRice, Esquire
Nichols Zauzig Sandler, P.C.
12660Lake Ridge Drive
Woodbridge, Virginia22192
Hypothetical Scenario
Christianand Anahave beenmarried approximately 14years, and have 2 kids, ages 10and 6.
Christian, is active duty military (enlisted) withapproximately 17years ofservice. Anahas been
a stay athome mom for the pastten years and has anassociate's degree. She lastworked as an
administrative assistant for a real estate company, priorto having children.
A little overa yearago, the parties had anargumentand Christianadmittedto Anathat he has
had numerous affairs during the course oftheirmarriage. Christiantells Anathathe mayhave
had sex with about 10 different women, butdenies having had sexual relations with anyone other
thanher for the six months priorto theirargument. Anadoes not believe Christian, and so has
himtake apolygraphtest, whichhe consentsto so thathe canprove he has not had any other
affairs during the previous six months. Atthe polygraphexam, Christianfails several questions
relating to the numberofaffairsthat he has had, and he finally admits to Anathat he has had a
total of16 different affairs during theirmarriage. He admits that hismostrecentdalliance
happened about eightmonths priorto the parties' argumentand the subsequentpolygraphexam.
Anatells Christianshe is not sure what she wantsto do regarding theirmarriage, so the parties
continue residing inthe samehome and sleeping inthe same bedroom, but do not have sexual
relations. Approximately 3 months afterhis infidelity has beenrevealed, Christiangets
deployed. While Christian is away ondeployment, Anacontacts him and tells himthat she
cannotresolve herissues aboutthe adultery, and wants to endtheirmarriage. Anatells Christian
thatshe is leavingto moveto her brother's home, who livesthree hours away from the marital
residence. Christiandoes not objecttoAna's departure, and at the end ofhis sixmonth
deploymentreturns to the marital residence (wherehe has continuedto make all ofthe mortgage
payments). Christianand Anathen beginthe process oftrying to negotiate a settlement, butwith
no success. Anacontinues living withherbrother, and has onlyworked a short-termretailjob
sincethe separationfor approximately four months. Aftera few months ofliving withher
brother, Anatells Christian she is moving outofherbrother'shome and into the home ofa good
male friend, Edward. Christian is unhappy withthis turn ofevents, and so he files for divorce on
grounds ofadultery, allegingthatAnaand Edwardare involved in an adulterousrelationship.
Anafiles a Counterclaim, also alleging adultery basedon Christian's admissionsto the numerous
affairs and the failed polygraph exam.
Questions:
1. Does Christianhave sufficient groundsto file for divorce on adultery, ifhe onlyknows Anais
living inthe samehouse as this male friend, butknows nothing else about theirrelationship?
2. Does Anahave sufficientgrounds to file for divorce on adultery ifshe only has Christian's
admissions to herand the failed polygraphexam?
3. IsAnabarred from filing on adultery basedonthe principle ofcondonation?
4. Does it matterthat Christianis basinghis adulterypleading onpost-separation adultery?
5. Whataboutthe doctrine ofrecrimination? Howdoes that ultimately affect both Christianand
Ana's case?
6. Christianhires a private investigatorwho speaksto Edward underthe guise oflooking for a
lostdog. While conversing withthe private investigator, Edward ends the conversationby
tellingthe PI he hasto return hometo have dinner withhis family. Does this strengthen
Christian's adultery case?
7. Would Christianbe able to file on grounds ofadultery ifAnawas living witha female friend,
and again, all he knew was that she was living witha female friend who was payingthe
household bills and expenses for Ana?
8. What ifChristianfound outthat Anawas living withthe female friend and sharing a bedroom
withthe female friend who was paying all ofthe living expenses for Anaand herchildren?
9. Ana files aPendente Lite motion, and asks for temporary spousal support. What are the odds
thatshe will receivetemporary spousal support?
10. Whatrisk does Christian haveto paypermanentspousal supportto Ana?
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11. Yourepresent Ana. Shetells you that basedoneverythingthat happened inhermarriageto
Christianshe wants at least a 60/40 splitofthe marital assets (excluding Christian's military
retirement). Whatdo you counsel her?
th
12. Whathappens ifbothChristianand Anapleadthe 5 Amendmentto any ofthe allegations
inthe pleadings regarding adultery? Isthis a viable defense for eitherofthem?
ProvingAdultery
Adultery is not onlya fault ground inVirginia, but is still a crime, codified at Va. Code Ann.
§18.2-365 whichdefines adultery as follows: "Anyperson, being married, who voluntarily shall
have sexual intercourse with anyperson not his orher spouse shall be guilty ofadultery,
punishable as a Class 4 misdemeanor."
Evidence ofadulterymust be made"clear, positiveandconvincing"(Romero v. Colbow, 27 Va.
App. 88, 1998)and even strongly suspicious circumstances will notbe enoughto supporta
fmding ofadultery. The burdenofproofis onthe party alleging the adulteryto prove it.
Seemannv. Seemann, 233 Va. 290 (1987). Inthe initial pleading for divorce setting forth the
adultery grounds, the pleading must name the time, place and circumstances ofthe alleged
adultery, and that must be done with some degree ofcertainty. White v. White, 121 Va. 244
(1917). A review ofmany adultery cases showthatthat the Court's determinationofadultery is
very fact and case specific, and is oftennotdisturbed on appeal where the Courthas made a
determinationofthe sufficiency ofthe evidence.
Adultery evidencemust also be, as with any other grounds ofdivorce, corroborated. The Court
has said that in any case where it is evidentthat there is no collusion, the corroborationneed only
be slight. Pommerenke v. Pommerenke, 7Va. App. 241, 1988 Inthe Pommerenke case, the
Wife admittedunderoath that she and herparamourhad engagedinsexual relations on one
occasion, andthen also wrote thatin herjournal, whichwas found bythe husband. The Court
found thatthis was sufficientcorroborationfor the husbandto have provenhis claim ofadultery.
The Court, quoting the Martinv. Martincase (Martinv. Martin. 202 Va. 769, 1961)went onto
saythatcorroborationneed not be sufficienton it's ownto establisha grounds for divorce, and
citingthe Dodge v. Dodge case (Dodge v. Dodge, 2 Va. App. 238, 1986) corroborationdid not
haveto be provided by witnesses, butcouldbe determinedthroughthe surrounding
circumstances already established.
Onarelated noteto ourhypothetical, polygraphexams are not admissible as evidence in
Virginia, pursuantto Va. Code Ann. § 8.01-418.2, which makesthe analysis ofanypolygraph
testcharts inadmissible in any proceeding.
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Post-Separation Adultery
The Courthas established thatpost-separationadultery is also a valid ground for filing for
divorce inVirginia. The ideabehind the waiting period for a divorce a vinculo matrimoniiwas
to give the parties time to attempt a reconciliation, and to determine ifthey really want a
separationto be final. See Coe v. Coe, 225 Va. 616, 1983.
Condonation
Condonationis seenas the "forgiving" ofa fault ground ofdivorce, and canbe used as an
affirmative defense to a suitfor divorce basedonfault grounds. The general rule is that ifone
partyvoluntarily continuedto cohabit withthe otherparty after learning ofthe marital fault, then
they have condonedthat marital fault. However, the case law is divided on whatexactly
constitutes "cohabitation"after learning ofthe marital fault, with some cases finding thateven
one act ofsexual intercourse will be sufficient (See Tarrv. Tarr, 184Va. 443, 1945) butother
cases have notfound the same. See Petachenko v. Petachenko, 232 Va. 296, 1986.
Inthe case ofMcIlwain v. McIlwain(McIlwainv. McIlwain, 215 Va. 633, 1975)the parties
separated in 1971, stayed apart for nearlythree weeks, and then decided to try a reconciliation,
and resumed living togetheragain for a periodofnearly four months. The Court's ruling does
not reflectwhetherthe parties engaged insexual intercourseduring thatperiodoftime, butyet
the Courtfinds that by doing so, the wife condonedthe previous cruelty allegations, and found
that shedid notthen have cruelty grounds for divorce. (McIlwain, at 636-637)
Recrimination
Recrimination is defense whereby each party is guilty ofsome marital fault grounds, so neither
party canobtaina divorce basedontheir alleged fault. One ofthe most interesting Virginia
casesto deal withthe issue ofrecriminationisthe case ofDavis v. Davis (Davis v. Davis, 8Va.
App. 12, 1989). Inthatcase, the wife filed for divorce alleging constructive desertion bythe
husband, and, more significantly, cruelty, afterthe Husband shother inthe backand lefther
paralyzedfrom the waistdown and ina wheelchair. Thehusband filed an answer, and a cross
bill and allegedthat his wifehad willfully deserted him priorto the shooting incident. The Court
found that because the wife had desertedthe husbandthis negated her cruelty complaint, as they
were both guilty ofmarital fault, and grantedthe parties a divorce based onthe ground ofhaving
lived separate and apart for more than a year. Apparently, the conceptof"relativedegrees of
fault" does notmatter in a recrimination defense.
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Same-SexRelationships and Adultery
The Courthadtaken varying positions as to whethera same-sexrelationship could be classified
as adultery. The criminal statute (Va. Code Ann. § 18.2-365)defines adultery as engaging in
sexual intercourse withanyperson [emphasisadded] not his orherspouse. Therefore, it is not
clearthat adultery has to be defined as sexual intercourse between a man and a woman. Va.
Code Ann. §20-91 defines grounds for divorce as adultery, orfor sodomy orbuggery committed
outside marriage. Sodomyand buggery are also still crimes inVirginia, pursuantto Va. Code
Ann. § 18.2-361,thoughthere is obvious questionaboutthe constitutionalityofthat code section
following the Virginia Supreme Court's ruling inMartinv. Ziherl which followed the u.S.
Supreme Courtcase ofLawrence v. Texas, and struckdownthe Virginia lawwhich prohibited
sexual intercourse betweentwo unmarried persons. Martinv. Ziherl, 269 Va. 35 (2005). Inthe
Martin case, the Virginia Supreme Courtruled that criminalizing sexual conduct between
consenting adults engaged inprivate conductwas a violation ofthe Due Process Clause ofthe
FourteenthAmendment. Martin v. Ziherl, at42. The Courtaddressedthatthis mightnot hold
true regarding minors, non-consensual activity, prostitutionorpublic activity (Martinv. Ziherl,
at42) butdid not address it's applicabilitytoward divorce law.
It is relevantto note also that cohabiting ina same-sex"relationship"canbeenoughto terminate
anexisting spousal supportobligation, even ifneitherparty admits to engaging in any type of
sexual activity. The Courthas heldthatlivingtogetherinthe same home, sharing expenses and
householdduties, traveling togetherand engaging in leisure activities constitute a "relationship
analogous to marriage" for purposes ofterminating spousal support. See Brennanv. Albertson,
RecordNo. 2042-11-4 (July 24,2012) (unpublished).
Adultery as a barto spousal support
Va. Code Ann. §20-107.1(B) providesthat no permanentspousal support shall be awarded if
there exists inthat spouse's favor a ground ofdivorce under Va. Code Ann. §20-91(1), which
includes adultery. The exceptionto this is ifthe Court determines by clearand convincing
evidence that itwould be a manifest injusticeto the otherparty, based onrespective degrees of
fault andthe relative economic circumstancesofthe parties. Va. Code Ann. §201-107.1(B).
The conceptofrespective degrees offault does nothave to rise to the level ofa legal fault
ground for divorce. Barnes v. Barnes, 16Va. App. 98 (1993). The Courtinthat case found that
fault included all ofthe behaviorthat affectedthe marital relationship, including the
circumstancesthat letto the ultimate breakdownofthe marriage. Barnes v. Barnes at 102-103.
Interestingalso inthe Barnes case is thatthe adultery upon whichthe husband soughtto bar
spousal supportwas post-separationadultery, and which occurred aftershe had alreadymoved
outofthe marital residence.
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Adultery and EquitableDistribution
The relationship ofadultery and equitabledistribution is somewhat murkierthan it's application
to establishing grounds for pleadings and evenspousal support. One ofthe factors the courthas
.to considerunderVa. Code Ann. §20-107.3 isthe circumstances and factors that ledto the
dissolution ofthe marriage, including any grounds for divorce under (1) of§20-91. However,
the Courthas ruled onmore thanone occasionthatcircumstances leading to the divorce, but
whichhadno effectonthe marital propertyoritsvalue are not relevantto determining a
monetary award, and thatthere must be a linkestablishedbetweenthe fault and the marital
estate. Asterv. Gross, 7Va. App. 1(1988). The purpose ofthis rule is prevent arbitrary money
judgmentssolely as a"punishment"to one spouse for their behavior.
Whilethere must be a link established, the Courtwill considerthe impact offault as partofan
overallviewofthe nonmonetary contributionsmade by eachofthe parties to the marriage,
which is anotherfactor the Courthas to consider. Inthe case ofo'Loughlinv. O'Loughlin, the
Court awardedthe wife sixty percentofthe marital estate, and gavethe husband forty percentof
the estate. Thehusband argued thatthe court's considerationofhis negative non-monetary
contributions were simply a wayto punishhimfor marital infidelitywhich had beguninthe
beginning ofthe marriage, and continueduntil divorce. O'Loughlin v. O'Loughlin, 20 Va. App.
522 (1995). The Courtfound insteadthatdue to husband's infidelity, he made virtually no non
monetary contributions to the marriage, and actually hindered the wife's ability to make
meaningful nonmonetary contributions to the marriage. O'Loughlinv. O'Loughlinat 527-528.
Itis also not necessary for the Courtto grantthe divorce based on the fault ground for the
evidence related to aparty's adulteryto come in. Inthe case ofCousins v. Cousins, the husband
contended that the trial courterred in consideringevidence ofhis adultery, whenthe divorce was
granted onthe ground ofa one-yearseparationonly. Cousins v. Cousins, 5Va. App. 156 (1987).
The Appellate Courtdid not agree, and heldthatcircumstances and factors that contributedto the
dissolutionofthe divorce could be considered, regardless ofwhetherthey constituted grounds
for divorce. Cousins at 158.
Itis amuch harderburdento prove that the adultery and fault grounds counted as waste and
dissipation ofmarital assets, as the wife inthe case ofSmithv. Smithlearned. Inthat case, the
husband admittedthat he had beeninvolved inafifteen year affair with a woman, and thathe
metthis woman at leastonce ayearat avarietyoflocations, and that she sometimestraveled
withhim onworktrips. Smithv. Smith, 18Va. App. 427 (1994). The wife arguedthatthe
husband's lengthy affair amountedto adissipationofmarital assets, butthe court ruled that she
did not meetherburden inproving this, as itwas not clearthat husband had made these
expenditures specifically for the purpose ofdepletingthe marital estate. Smithat430.
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LIS> CodeofVirginia> 20-91 Page 1of1
§20-91. Grounds fordivorce from bond ofmatrimony; contentsofdecree.
A. Adivorcefrom the bondofmatrimony may bedecreed:
(1)Foradultery; orforsodomyorbuggery committedoutsidethemarriage;
(2) [Repealed.]
(3) Where eitheroftheparties subsequentto themarriagehas beenconvictedofafelony, sentencedto confinement
for morethanoneyearand confinedfor suchfelony subsequenttosuchconviction, andcohabitationhas notbeen
resumedafterknowledgeofsuchconfinement(inwhichcase no pardongrantedtotheparty sosentencedshall
restore suchparty to his orherconjugal rights);
(4), (5) [Repealed.]
(6)Whereeitherparty has beenguilty ofcruelty, causedreasonableapprehensionofbodily hurt, orwillfully
desertedorabandonedthe other, suchdivorce may bedecreedtothe innocentparty afteraperiodofoneyearfrom
thedate ofsuchact; or
(7), (8) [Repealed.]
(9)(a)Ontheapplicationofeitherparty ifand whenthehusbandand wifehave livedseparateand apartwithoutany
cohabitationandwithout interruptionforoneyear. Inany casewherethe parties haveenteredintoaseparation
agreementandthereare no minorchildreneitherbornofthe parties, bornofeitherparty andadopted bytheotheror
adopted by bothparties, adivorce may be decreedon applicationifand whenthe husband and wife have lived
separatelyandapartwithoutcohabitationand without interruptionfor sixmonths. Apleaofres adjudicataorof
recriminationwith respecttoany otherprovisionofthis sectionshall notbeabartoeitherparty obtainingadivorce
onthis ground; norshall itbea barthateitherparty has been adjudged insane, eitherbeforeoraftersuchseparation
hascommenced, butattheexpirationofoneyearorsixmonths, whicheveris applicable, from the commencement
ofsuchseparation, thegrounds fordivorceshall be deemedto becomplete, and the committeeofthe insane
defendant, ifthere be one, shall be made apartyto thecause, orifthere be no committee, then thecourtshall
appointaguardianad litem to representthe insanedefendant.
(b)Thissubdivision(9) shall apply whethertheseparationcommenced priorto its enactmentorshall commence
thereafter. Whereotherwisevalid, any decreeofdivorcehereinbeforeenteredby anycourthavingequityjurisdiction
pursuantto this subdivision (9), notappealedtotheSupremeCourtofVirginia, isherebydeclaredvalid accordingto
thetermsofsaiddecree notwithstandingthe insanityofapartythereto.
(c)Adecreeofdivorcegranted pursuanttothissubdivision(9)shall innoway lessenany obligationany party may
otherwisehavetosupportthe spouseunlesssuch party shall provethatthereexists inthe favorofsuch party some
othergroundofdivorce underthis sectionor§20-95.
B. Adecreeofdivorce shall includeeach party's social security number, orothercontrol numberissuedbythe
DepartmentofMotorVehicles pursuantto §46.2-342.
(Code 1919, §5103; 1926, p. 868; 1934, p. 20; 1952,c. 100; 1960,c. 108; 1962,c. 288; 1964,cc. 363,648; 1970,c.
311; 1975,c.644; 1982,c.308; 1986,c.397; 1988,c.404; 1997,cc. 794,898.)
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LIS> Code ofVirginia> 18.2-365 Page 1of1
§18.2-365.Adultery defined; penalty.
Any person, beingmarried, who voluntarilyshall havesexual intercoursewithany person nothis orherspouseshall
beguilty ofadultery, punishableas aClass4misdemeanor.
(Code 1950, §§18.1-187, 18.1-190; 1960,c. 358; 1975,cc. 14, 15.)
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LIS> Code ofVirginia> 8.01-418.2 Page 1of 1
§8.01-418.2. Evidence ofpolygraph examination inadmissible in any proceeding.
The analysis ofany polygraph testcharts produced during any polygraph examination administered to a party or
witness shall not be admissible in any proceeding conducted pursuant to §2.2-1202.1 orconducted by any county,
city ortown over the objection ofany patty except as to disciplinary or other actions taken against a polygrapher.
(1993, c. 570; 1995, cc. 770, 818; 2012, cc. 803, 835.)
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