Do you qualify for spousal support in Virginia?

Posted on Jan 3, 2014 by Katie Carter

Do you want spousal support? At some point during the course of your Virginia divorce, this is a question you’ll have to consider. For many women, this is a difficult topic, and one they’re not all that willing to discuss. Still, for the women who qualify to receive spousal support, it can be the difference that allows them to breathe a little bit easier in the days, months, and sometimes even years after the divorce.

What is spousal support?

Spousal support, or alimony, is financial support paid after divorce to the financially dependent spouse. It is important to note that spousal support is gender neutral; a financially dependent husband could request it from a wife, just like a financially dependent wife can request it from a husband. Sometimes, spousal support lasts for a short time, sometimes permanently (though it would end if either of you died, or if the recipient spouse remarried or cohabitated), and sometimes to give you a chance to do something else (like go back to school).

Will I get spousal support?

In order to determine whether you might qualify to receive spousal support, or alimony, from your husband, you must look first at your respective incomes. Spousal support requires analysis on at least three levels, but you can’t move on to consider any further points unless you can first demonstrate that (1) you have a need, and that (2) he has an ability to pay.

Need and Ability to Pay Support

So, what does that mean? How do you show that you have a need? What constitutes an ability to pay? It’s relatively easy to demonstrate that you have a need. Your attorney can help you prepare a number of documents that paint an accurate picture of your financial situation. If you can show, for example, what your monthly income is versus what your monthly expenses are, and there’s a deficit, you’re in good shape.

To determine whether your husband has an ability to pay support, the court would first make sure his income is more than yours (or his expenses are less). If not, even though you can easily demonstrate that you can’t pay your bills, he probably can’t really afford to help you any more than he can help himself. Remember, your need is only half the equation; the court is also looking at whether he, realistically, has the ability to pay. In an ideal situation, you would produce a monthly budget that shows that you have less coming in than you owe in expenses every month, and his monthly budget would show that not only does he earn more than you but that his expenses are less. While your monthly budget shows a deficit, ideally his should show a surplus. That would indicate that he does have the ability to pay.

If you can’t show both need and ability to pay, the analysis ends here. If you can, however, you can move on to consider the next part of the test.

The Statutory Factors

Virginia Code 20-107.1 provides certain factors that must be considered before a spousal support award is ordered. Those factors are listed below:

  • 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.

The court will look at all of these factors, and hear evidence from both sides. If, for example, you’ve stayed at home as part of a mutual decision about how you wanted your children to be raised, the judge will hear that evidence. The judge will consider your earning potential, your work history, and your education in relation to your husband’s. The factors are so incredibly broad, and take so many different things into account, that evidence relating to them is often a very strong point for women who are looking to receive spousal support. In most families, the wife takes on more of the nonmonetary contributions to the family than the husband, regardless of whether she has a professional career. These factors normally really allow the wife to shine.

If you haven’t already, take a minute and read the factors, and think about how each applies to your marriage. Do you think you could make an argument that you deserve spousal support based on these?

Length of Marriage

If you’ve satisfied (1) that you need and he has an ability to pay, and (2) can make an argument supporting your right to receive spousal support under the statutory factors, we now have to look at the length of your marriage. Though you won’t find this section in the Virginia code, you will probably find, if you speak with a domestic relations attorney in Virginia, that the length of your marriage affects the length of your spousal support award. Again, let me say, this is not law, but it is a presumption that most attorneys and attorneys have accepted.

So, how long can you expect to receive spousal support? I’ll provide you with some guidelines but, before I do, I want to say it again: this is not law, and you should not regard these lengths of marriage as absolute and definitive. There is wiggle room!

If you’ve been married 1-5 years, the presumption is that you will not receive spousal support. If you’ve been married 6-18 years, the presumption is that you’ll receive support for half the length of the marriage. If you’ve been married for 19 or more years, the presumption is that you’ll receive support permanently. Again, permanently doesn’t mean forever—it means until one of you dies, until the recipient spouse remarries, or until the recipient spouse cohabitates in a relationship analogous to marriage for a year or more.

This analysis should give you an idea of whether you’d qualify to receive spousal support.

How MUCH spousal support would I get?

Unfortunately, this question isn’t nearly as easily answered. Spousal support is roughly determined based on a formula, but the formula isn’t binding in courts in the Hampton Roads area. Some of the other courts follow a specific formula, but in Virginia Beach, Chesapeake, Newport News, Hampton, Suffolk, Portsmouth and most of the other areas where we practice most often, nothing is binding.

To ensure that you get the most spousal support possible (so that you can have the best, freshest new start possible), you’ll probably want to talk to an experienced divorce attorney in your area. There’s a lot of flexibility here, so be sure not to sell yourself short. To find out more about exactly how much spousal support you may be entitled to under Virginia law, feel free to give our office a call at (757) 425-5200.