A thorough analysis of case law interpreting and applying the manifest injustice exception is beyond the scope of this blog.
But suffice it to say that whether manifest injustice dictates that the adulterous spouse may still receive spousal support is a case-by-case determination which is made based upon the unique facts of each case.
If the separation date may be contested later, it is best to create a record by stating the intention to permanently end the marriage in writing.
Proving the date of separation is a factual determination, so the courts will need some sort of evidence to corroborate the date of separation.
In many cases there was a text message or an email, but often there was simply a conversation.It is not uncommon for a family law attorney to hear something like the following question from a client: "Now that my [spouse] and I have separated, is it ok for me to...know...date?" The questioner likely knows that adultery that occurs prior to separation can have negative consequences, but what about post-separation?There is no authority to be cited in Virginia that should make a spousal support candidate feel secure that he or she can commit post-separation adultery without consequences. But Judge Chamblin granted the husband a divorce based on the wife's adultery, and declined to invoke the manifest injustice exception, explaining as follows: I understand present society and the need for companionship, but there is also dignity and reverence in the institution of marriage.... The Husband's actions may have contributed to the failure of the marriage, but that did not give the Wife the right to commit adultery, deceive the Husband, and continue to collect support from him. is a Circuit court case, it provides a cautionary illustration of the public policy of Virginia regarding post-separation adultery.