(Inquiring for a friend) Wife asked husband to move out, after marriage repeatedly failed. A year later, the husband finally moved out of a house rented by the married couple and wife's mother. Both parties had been adulterous, forgiving of adultery, and even agreed to open marriage at one point. The wife wants a clear-cut divorce, but worries the husband will seek spousal support because she makes more than him, but only by (estimation) less than $5,000 a year. Honestly, probably much less of a difference than that.
Divorce / Separation Lawyer
The matters of no-fault (1 year separation) or fault (usually adultery, desertion, cruelty) are the grounds or reason for the state to terminate a marriage. To answer your first question, parties proceeding on a no-fault divorce can still seek spousal support.
Spousal support is determined by Va. Code 20-107.1. You will notice in para. E, "The court . . . shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery . . .." So, adultery can be a bar to spousal support.
However, you added the additional complicating factor of the other spouse's adultery, which may negate the first spouse's adultery.
A $5000 difference in annual incomes is not likely enough to trigger a support obligation. Spousal support calculation starts with whether the potential recipient of support has "need." "Need" is found where the recipient's expenses based on the marital lifestyle exceed the income the recipient would earn if fully employed. The recipient has the first duty to attempt to support him or herself.
If there is need, then we look at the payor spouse's ability to pay, i.e., does his or her income if fully employed exceed his or her expenses based on the marital lifestyle.
Family Law Attorney
As usual, Attorney Miller has provided a very concise and accurate summary of the law in VA concerning spousal support to which I would only add a couple of things.
(1) If the adultry was "forgiven" by the parties and the marital relationship resumed (and no further adultery occurred or any such further adultery was "condoned" as you describe), then it is highly unlikely that either of these parties could successfully win the marital fault argument (and almost certainly would be denied a divorce on the basis of adultery). Now, whether the court would consider the mutual adultery to be a presumed mutual bar to spousal support under the statute is an interesting question and one that your friend may want to employ an attorney to research for her/him.
(2) While there is no set formula for determining the amount of alimony (post-divorce spousal support) to be paid in Virginia, there is a formula that is used for calculating pendente lite spousal support in J&DR court and in a number of the circuit courts. That formula is 30% of the payor's income minus 50% of the payee's income, unless there is also child support (in which case the formula is 28% minus 58%). So, if wife makes 3000 per month and husband makes 2500 per month, then husband's spousal support under the pendente lite guidelines would be $0 (3000 x 30% = $900; 2500 x 50% = $1250; $900-$1250= negative $350). So, while the court is required to weigh all of the factors set forth in 20-107.1 in determining whether to award spousal support, how much, and for how long, as a practical matter a spouse who earns too much money relative to the other spouse to receive pendente lite spousal support is generally unlikely to receive permanent support -- absent some great disparity in division of marital assets/debts, some extreme fault issues with financial consequences, age or health problems, or some other extreme or unusual circumstances. This is not a guarantee that spousal support would not be awarded in this case. However, the difference of less than $500 a month income between the 2 spouses (plus the potential disqualification of both spouses to receive support absent hardship due to the adultry) makes it less likely that either party would receive spousal support.
This response does not create an attorney-client relationship and is intended for general information purposes only.
Divorce / Separation Lawyer
The short answer to your question is yes. A number of factors go into the awarding of spousal support. I would suggest that your friend consult wiyth an attorney because you have raised several important issues such as adultery and relative income of the parties. Both of these issue play a large role in whether spousal support is awarded.
This is for informational puposes only and is not contemplated to create an attorney-client relationship.. You should discuss this and all issues with an attorney of your choosing.