Spousal support and “manifest injustice” exception: newsworthy divorce appeals

The Decision:

In Giraldi v. Giraldi the Virginia Court of Appeals reversed a reservation of spousal support awarded to an adulterous spouse. The decision rested primarily upon the absence of facts sufficient to prove “manifest injustice” by “clear and convincing evidence”.

The Law:

The decision whether to award spousal support is usually left to the discretion of the trial court. An appellate court will not reverse a spousal support determination so long as the trial court considers all of the relevant facts and does not abuse its discretion. In other words, a trial court’s spousal support decision must be plainly wrong or without any supporting evidence if it is to be overturned on appeal. Needless to say, reversal of a trial court’s spousal support ruling is an exceedingly rare occurrence.

Divorce lawyers who keep up with these things sat up and took notice when this published opinion was recently issued.

Current law (Virginia Code 20-107.1(B)) states:

“no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse’s favor a ground of divorce under the provisions of subdivision (1) of § 20-91. However, the court may make such an award notwithstanding the existence of such ground 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.”

Adultery is a fault ground for divorce. Thus, when a spouse if found guilty of adultery, he or she is barred from receiving spousal support in the absence of clear and convincing evidence that the bar would constitute a “manifest injustice”.

The Facts:

So what were the pertinent facts in the case? The parties were married just over a decade. The wife admitted to committing adultery over a 6 or so month period prior to the divorce proceedings being brought by the Husband. The evidence established that the relationship was already on the rocks but that the wife was guilty of reprehensible behavior in addition to adultery. The court’s examples included her threat to turn the Husband into the police after slamming her own hand in the door several times. For his part, the Husband was accused by the Wife of being unavailable and emotionally non-supportive. Both spouses were employed but husband earned substantially more income than the wife.

The Reasoning:

The Appeals Court noted its prior opinions holding that a higher level of justification is required for the “manifest injustice” exception to be “based upon” the respective degrees of fault. In addition, “respective degrees of fault” include any acts or conditions which contributed to the marriage’s failure and not just those relied upon as legal grounds for divorce.

So what was the Appeals Court’s ultimate reasoning in this case?

First, there was no indication in the record that the trial court determined that the wife proved by clear and convincing evidence that a support bar would constitute “manifest injustice”. That’s it. The trial court transcript did not give any indication that the proper standard of proof was considered.

Second, there was no indication that trial court considered the two factors upon which the manifest injustice must be based: 1) respective fault during the marriage, and 2) the relative economic circumstances of the parties. Without any factual findings regarding these factors it was impossible to then conclude that the wife’s evidence established a “manifest injustice” would occur if she were to be barred from receiving spousal support.

Third, and most importantly, the Appeals Court stated “a “manifest injustice” cannot be speculative”. It must be shown to presently exist by clear and convincing evidence. The evidence in this case, according to the Appeals panel, was incapable of meeting such a burden and the trial court’s statement, that the future for the parties was uncertain, was not enough to carry the day for the wife.


We will wait to see how this opinion affects practice and strategy in the trial courts. It most certainly will keep divorce lawyers and judges on their toes in adultery cases where a bar to spousal support is being sought and the “manifest injustice” exception is being argued.

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