Spousal support is based on a number of factors, including the income of both parties. You have to demonstrate that the receiving party has a “need” (that is easily done), and you also have to demonstrate that the paying party has an “ability to pay.” This is determined based on relative income disparity. There has to be a big enough difference between what you’re making and what your husband is making for you to qualify for spousal support. If you make more money, or if your incomes are relatively close to the same, you won’t receive spousal support. If, however, there is a significant difference between what you make and what your husband makes, read on.
After determining whether there is a need and an ability to pay, the court will look to the Virginia statute governing spousal support. Read the full statute here. There are thirteen factors:
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;
The standard of living established during the marriage;
The duration of the marriage;
The age and physical and mental condition of the parties and any special circumstances of the family;
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;
The contributions, monetary and nonmonetary, of each party to the well-being of the family;
The property interests of the parties, both real and personal, tangible and intangible;
The provisions made with regard to marital property under 20.107.3;
The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
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;
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;
The extent to which either party has contributed to the attainment of education, training, career position, or profession of the other party; and
Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
Now that you’ve read the factors, do you think you can make a good argument for why you deserve to receive spousal support? I hope so!
Even if you qualify to receive support, we’ll have to consider how much you’ll receive, and for how long. The amount is relatively easily determined because there’s a formula. (Remember that it is absolutely NOT mandatory for the court to use this formula, but it will give you a good baseline idea of how much you might expect to receive.) The formula is 28% of the higher earning spouse’s income minus 58% of the lower earning spouse’s income.
As for how long you’ll receive support, you will also have to consider the length of your marriage. Depending on whether your marriage was short, mid-length, or long will affect the duration of your spousal support award. To help you figure it out, I’ll provide you a general guideline for determining the length of spousal support (please note that this is NOT law, but a guideline that attorneys and judges sometimes use to determine duration of support): if you’ve been married 1-5 years, you won’t qualify to receive support; if you’ve been married 6-18 years, you qualify to receive support for half the length of the marriage; if you were married 20 years or more, you qualify to receive permanent spousal support. Permanent spousal support is defined as support that you receive until one of three events occurs: (1) either of you dies, (2) you remarry, or (3) you cohabitate (live together like you’re married) with another person in a relationship analogous to marriage for a period of one year or more.
In order to prove that you deserve to receive spousal support, you’ll have to satisfy all these requirements: (1) you have a need, (2) he has an ability to pay, (3) the statute warrants an award of spousal support, and (4) your length of marriage justifies an award of support. Good luck!