Though spousal support typically takes a predictable shape, in the form of monthly payments over a certain period of time, it doesn’t have to be so.
It’s probably true that, if you litigate your case in front of a judge in the Virginia circuit court, it will take that predictable form, assuming you’re awarded spousal support. But if you negotiate a separation agreement, you have a lot more freedom to craft an arrangement that suits your needs.
What’s the difference? Well, a judge has to be careful. He (or she, of course) doesn’t have the time necessary to structure creative arrangements in open court. It would take a lot longer, both in terms of his own brain power needed to come up with the special arrangement, and also in terms of the arguments, evidence, and witnesses surrounding it that the attorneys involved would have to utilize.
These days, delays are common – and, as of the date of this writing, some courts are setting trial dates a year or more ahead. The dockets are full, full, full! You have to remember that, in addition to hearing family law cases, circuit court judges hear criminal cases, personal injury cases, cases on appeal in the juvenile court, and so much more. It’s busy, and the delays from the pandemic are still slowing things down.
Not only that, but a judge can’t risk being seen to give preferential treatment to one spouse versus the other. That opens up the potential for abuse, and increases his odds of being overturned on appeal – none of which the judge wants to stain his record.
In a separation agreement, on the other hand, your only limitations are the creativity of the drafters, and you and your husband’s willingness to compromise.
Lump Sum Spousal Support Awards
So, all of that to say, a lump sum spousal support award IS a possibility! It’s not something that we see happen very often (because most people don’t have access to that kind of cash), but it is something that can happen, and something you should be aware of.
How do you determine how much you should receive in a lump sum spousal support award?
Spousal support is never guaranteed, and it’s one of those areas of law that is highly contested in many cases. Especially with the recent changes in the law, husbands are more reluctant than ever to pay spousal support.
In case you missed the updates, spousal support is no longer taxable to the person receiving it or tax deductible to the person paying it. We’ve also seen less and less permanent support awarded (support that lasts indefinitely, until death, remarriage, or cohabitation), and more vocational experts and others involved who invariably opine that our clients (even our older clients who’ve been out of the workforce for decades) can go back to work. Imputation of income is a real concern.
There’s a formula – the Fairfax formula – but it doesn’t apply in every case across the board. It only applies on a temporary basis (or ‘pendente lite’) for litigants whose monthly combined income doesn’t exceed $10,000. For others – for permanent awards or for those whose incomes exceed combined $10,000 per month – there’s no real standard.
Modifiability is also easier. It used to be that, in agreements, it wasn’t modifiable unless it specifically said it was, but now most awards of spousal support are modifiable. Really, spousal support is modifiable unless the language specifically says that it is not. So, even in cases where the parties have been married a long time, there’s a significant disparity in income, and all the other factors seem to be in her favor, there’s still the uncertainty that comes from knowing that, in the future, support could be modified.
So, lump sum has some appeal. The terminating factors don’t apply – so you can die, remarry, or cohabitate with reckless abandon (trying to be a little funny here, ignore me), and neither does modifiability, because you already got it all. There’s nothing to modify if you’ve already been paid. All of those things are appealing.
But how do we determine how much? That’s going to be the subject of intense negotiations. We’ll probably use the Fairfax formula, and multiply out by a couple years to see what you could expect over a reasonable period – ten, twenty, thirty years, whatever, depending on your age and the length of the marriage.
Probably, he’ll also want to feel like he’s getting a deal. Why else would he part with so much money at one time, especially since he’ll likely have to dig into his equity in the home or his retirement accounts in order to get it? (Few people – and I see a lot of bank account statements – have accounts with this kind of cash in them.)
So, you’ll have to compromise. Negotiate. Come up with a sum that both speaks to how long that you may be receiving support and he may pay support, taking into account your age, health, and work history – and his, too. The date that he may retire is particularly relevant, since that’s certainly a material change that would terminate or modify your spousal support award.
All that to say, I don’t have a hard and fast answer, except to suggest that this may be worth considering or proposing. It gives you some freedom from modifiability and termination (and also the stress that continued litigation would create). It gives him the freedom to move past spousal support, too, rather than continuing to strike a monthly check.
Talk to an attorney about your unique circumstances, what you might be entitled to, and what you could potentially propose. Weigh the pros and cons. Consider your best case scenario, and what route will get you there.
Like I said – your limitations are only your creativity and your willingness to negotiate. But you should feel free to make proposals that help give you the future that you’re hoping for.
For more information, or to schedule an appointment with one of our experienced spousal support attorneys, give our office a call at 757-425-5200.