Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, October 14, 2005

Case Law Development: Postnuptial Agreement that Conditions Maintenance on Absence of Adultery allows Parties to Raise Issue of Adultery even if Not a Grounds for Divorce

The Virginia Court of Appeals decided a case involving an interesting postnuptial agreement in which husband agreed to pay alimony to wife upon divorce. The agreement provided that husband would pay more alimony if wife proved adultery and further provided that if husband proved wife's adultery, "she agrees to relinquish her rights under this agreement. For the purposes of this agreement, proof of adultery is defined as; unaltered photographic or video representation of adultery; or, a finding of guilty of adultery in a court of law." When wife filed for divorce and sought to enforce the agreement, husband filed interrogatories asking about wife's sexual activities outside of marriage. The trial court struck the interrogatories and, when husband filed an amended answer to allege wife's adultery as a defense to her request for mainenance, the trial court struck the amended answer as well. According to the trial court, husband could not seek discovery of adultery unless he filed a cross-complaint for divorce on the grounds of adultery, which husband did not do.

The court of appeals reversed, finding that husband's interrogatories were well within the scope of discovery under Virginia rules of civil procedure and that his answer rightly raised the defense provided by the agreement. The court of appeals found no grounds for the trial court's interpretation that husband would be required to sue for divorce on the grounds of adultery in order to raise the issue.

Hall v. Hall, 2005 Va. App. LEXIS 401 (October 11, 2005)
Opinion on the web at (last visited October 13, 2005 bgf)

Antenuptial (postnuptial) Contracts, Divorce (grounds) | Permalink