Spousal support is one of those areas where tensions tend to run high. No one – husbands and wives included – want to have to pay it. But for the lesser earning spouse (and I can tell you, I’ve represented the lesser earning spouse many, many times), spousal support is sometimes the only real lifeline that they have.
I’m going to make some generalizations here. (Though, of course, in my experience, these have almost always held true.) In cases where the woman is the lesser earning spouse, that tends to be because she has curtailed her career for the sake of the family. She stayed home, worked significantly less, homeschooled the children, or whatever the case may be, specifically for the purpose of taking care of her family. In cases where the man is the lesser earning spouse, it’s generally because he’s a loser.
Sorry not sorry – that’s what I see. It tends to be true. I’ve seen very, very few (like, I can’t actually think of any) husbands who worked hard but happened to earn less. Most of the time, these men are more like large manchildren. They tend to slack off, stay underemployed (or unemployed!), bounce from job to job, and generally drain a family’s resources.
The thing is, though, that spousal support is designed to be gender neutral. It’s not like only lesser earning wives can ask for support in divorce cases; any spouse can ask for spousal support (and, in fact, when a divorce is filed, almost all do). Provided that (1) either the parties agree, or (2) the judge awards it, spousal support can be awarded to either a husband or a wife.
Typically speaking, that happens when three criteria are met:
1. There is a need and an ability to pay spousal support.
In plain English, that means that one spouse has to earn significantly less than the other. If you earn more than your husband, it is possible that you could have to pay him support – though there are at least two other factors to consider before we know for sure.
It’ll be easy for him to demonstrate a need, especially if he earns less than you. You can quibble about the “ability to pay” portion, too, of course – especially if you have significant family debts and other things that would make payment of spousal support difficult for you. But, generally speaking, this mostly means that one spouse earns considerably more than the other.
2. The statutory factors are met.
We also look at the actual law. (I mean, right?) Virginia Code Section 20-107.1 deals with spousal support. Specifically, when we litigate (meaning, when a case goes to court) on spousal support, we base our arguments off of the statutory factors. We have to demonstrate that there’s a need and an ability to pay, too, but we also make arguments based off of these factors:
1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
2. The standard of living established during the marriage;
3. The duration of the marriage;
4. The age and physical and mental condition of the parties and any special circumstances of the family;
5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
7. The property interests of the parties, both real and personal, tangible and intangible;
8. The provisions made with regard to the marital property under § 20-107.3;
9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
13. Such other factors, including the tax consequences to each party and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce, as are necessary to consider the equities between the parties.
3. The duration of the marriage.
It’s not set in stone (like, I don’t have a code section to point you to on this particular issue), but we also look to the duration of the marriage to determine (1) whether and (2) for how long a spouse might qualify to receive spousal support.
The longer the marriage, the more likely you would qualify for permanent spousal support. Although, it has to be said, permanent doesn’t mean forever and ever – it just means until (1) one spouse dies, (2) the recipient spouse remarries, or (3) the recipient spouse cohabitates with someone in a relationship analogous to marriage for a period of one year or more.
In lesser term marriages, it’s possible that no spousal support would be awarded, but more often we see something similar to half the length of the marriage.
So, could he ask for spousal support from me?
Absolutely, he certainly could! But would he get it? That would depend on an analysis of these three points here.
It’s entirely possible. In cases where we think that he’s underemployed, or unemployed when he should be employed, we can sometimes hire employment valuators to guesstimate what he’s actually capable of doing and earning. Of course, that’s expensive, and it also means a litigated case… But, sometimes, it’s worth taking the time and energy to do it.
The best point in your favor? You’re the higher earning spouse, so chances are good that he can’t afford to put as much into the litigation as you can. You’ve got a strong arm that you can put to good use here, and maybe that’ll be enough to get him to agree to something lesser.
More good news? Agreements nowadays are modifiable based on a material change. So, if you don’t like your award of spousal support and the situation changes (he goes back to work, you retire, you earn less, etc), you can petition the court to modify your award of spousal support. Is it annoying? Sure, but at least it means you’re not necessarily locked into paying at a particularly high level forever, regardless of the circumstances.
So, yeah, probably not the answer you were hoping for, but, regardless, it’s going to be a good idea (especially if you’re worried about having to pay him spousal support) to talk to an attorney one on one about your unique situation. It may be that there are some factors or extenuating circumstances that I’m not aware of (after all, I’m writing this article generally, and not specifically to any one person) that change the analysis completely. Talking to someone will help you get a better idea of what might apply in your case.
For more information, or to meet with an attorney, give our office a call at 757-425-5200.