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The court is required, under §20-107.1(E), to consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery, conviction of a felony, cruelty, reasonable apprehension of bodily hurt, or willful desertion or abandonment.This is a threshold determination that can affect whether a spouse is entitled to support, but that should not affect the duration or amount of support, which should be decided according to the factors numbered 1 through 13 in §20-107.1(E).A judge must deny spousal support to the guilty spouse when the fault ground of adultery is proven, unless clear and convincing evidence demonstrates that the denial would result in a manifest injustice, as provided in Virginia Code Section 20-107.1(B).
Should adultery or some other fault ground for divorce in Virginia, determine the amount and duration of spousal support or alimony?The decision whether to award spousal support and the amount and duration of spousal support to be awarded are left to the judge’s discretion in Virginia.The Virginia Court of Appeals remanded the case to the trial judge to enter a divorce based on living separate and apart for a year, instead of the fault ground of constructive desertion in favor of the wife. The court further noted that the spousal support section, Section 20-107.1, did not specify how fault grounds were to be considered in making the threshold determination of whether spousal support would be appropriate.With regard to spousal support, the appellate court first recognized that “[w]hether and how much spousal support will be awarded is a matter of discretion for the trial court”, citing , 27 Va. If an award of spousal support were appropriate, then the trial court should consider the factors listed in Section 20-107.1(E).
The wife filed a cross bill (now properly a counter-claim under Rule 3:9 of the Supreme Court of Virginia for divorce and equitable distribution, alleging cruelty and desertion by husband.In Virginia, evidence in a divorce case can be presented directly to the court or to a commissioner in chancery under Virginia Code Section 8.01-607, a quasi-judicial officer appointed by the court who can make findings of fact and report to the court, or, in some cases, though written or oral depositions.