A few days ago “RVA Magazine” wrote an article about the death of a domestic violence related bill – HB 2105 which will not become law in this most recent session of the Virginia General Assembly. Had it been passed, the bill would have prevented spouses convicted of rape or felony assault of the other from receiving spousal support.
Husband Convicted of Assault Still Receives Spousal Support
According to the article, HB 2105 was inspired by the story of an unnamed Wife. Wife was the primary breadwinner in the family. On one horrifying evening in the late summer of 2011, Husband prevented Wife from communicating with anyone, threatened to shoot anyone who entered the house with a shotgun and later forced Wife to go on a terrifying car ride with him where he was driving dangerously. Eventually, Husband stopped the car, got out, went to the Wife’s side of the car and swung a hammer at her head. Fortunately, he missed, then proceeded to get back in the car and drive home.
Husband was charged with felony abduction and domestic assault and battery. Wife obtained a protective order. Husband pled guilty to the domestic assault and battery charge and later the felony assault charge. He was subsequently incarcerated, in part because of numerous violations of the protective order.
While Husband was in jail, Wife filed for divorce. Despite his conviction and incarceration, the court provided Husband with emergency spousal support and permanent spousal support, all at the expense of Wife.
When Can a Spouse Be Barred From Receiving Spousal Support?
So, here we have a husband who made wife feel as if her life was in danger. His actions were severe enough that he was charged and convicted of felony assault. Still, Wife was ordered to pay spousal support to him. This case raises the question – can a spouse be barred from receiving spousal support, and if so, what does it take for spousal support to be barred.
The answer to the first question is “yes”. Under Virginia law, a party’s claim for spousal support can be barred if that person is found to have committed one of the marital fault grounds for divorce, which include:
- Conviction of a felony with a sentence of confinement for more than one year
- Willful desertion
Cruelty of One Spouse Towards the Other Can Result in No Spousal Support Award
Cruelty consists of the actions of one spouse directed towards the other such as inhuman treatment, bodily injury, humiliation or a reasonable apprehension of bodily hurt. A stronger case of cruelty will include multiple instances or events. In the past, Virginia courts have found that a single act does not rise to the level of cruelty. In the 1956 case DeMott v. Demott, the Court found:
a single act of physical cruelty does not constitute grounds for divorce, unless it is so severe and atrocious as to endanger life, or unless the act indicates an intention to do serious bodily harm or causes reasonable apprehension of serious danger in the future, or the precedent or attendant circumstances show that the acts are likely to be repeated.
In DeMott, Wife sought divorce on cruelty grounds based on one instance where she alleged Husband “assaulted and beat her and threatened her with a knife”. After the alleged incident Wife remained in the house with the couple’s daughter for five days before leaving. The Court denied the Wife’s request for divorce on cruelty grounds, finding that although the assault was reprehensible and unwarranted, it did not do Wife serious bodily harm or cause her reasonable apprehension of serious danger in the future.
Courts have been consistent in following this “single act” requirement. For example, in Duncan v. Duncan, 2006 Va. Cir. LEXIS 74, Wife sought divorce on cruelty grounds and sought to bar husband from receiving spousal support because he entered her room in the middle of the night and bounced a half-inflated mylar balloon off of her head. The night before, Husband had sung a song in the marital home about how someone was going to die that night. Wife feared for her safety and left the home. Court denied Wife’s claim of cruelty finding that the single act was not sufficient.
Single Acts That Met the Cruelty Requirement
Cruelty has been found in single instance cases when the conduct rises to the level of “extreme cruelty” which is entirely subversive of family relations rendering the family association intolerable. For example, in Davis v. Davis, 8 Va. App. 12 (1989), the court found the requirement to have been met where Husband shot wife in the back, leaving her paralyzed from the waist down.
Recap of the Rule
In evaluating cruelty, courts look at the severity of act, the frequency in which it occurred as well as the individual’s actions after the conduct. Where the act is found to be less severe, it can be considered cruel if it occurred more than once and it caused the victim to leave the marital residence.
A single act can meet the cruelty standard, but it must be extreme. Here as well, the action of the victim spouse after the conduct occurred will have some weight in determining the effect of the action.
What you can do
Marital fault, particularly cruelty can be difficult to prove. Behaviors and acts that may have taken place over a period of time may individually not meet the standard, but the cumulative effect could be sufficient.
To state a case sufficient to meet the requirement, you should document the actions that take place as close to the events as possible. Include:
- The action
- When it occurred
- Names of witnesses, if any
Also, keep in mind that if you are going to claim that the actions taken put you in fear of your safety, your actions after the conduct will have weight.
It is a shame that HB 2105 did not move further in the process to becoming law. Passing the bill would have sent a clear message that domestic violence has no place in a marriage; those who choose to act out by being physically violent towards their spouse will face long term consequences for their actions.