What to expect in a spousal support case

Posted on Oct 16, 2017 by Katie Carter

It should come as no surprise to you that husbands pretty much hate spousal support.  No matter what our personal situation or the choices you and your husband made during your marriage, he’s going to say that he doesn’t think you need or deserve to receive spousal support.

And, if he files for divorce first, he’s going to ask for spousal support himself.  Don’t freak out, though; that’s totally normal.  In fact, regardless of whether he could actually legally qualify to receive spousal support, if he files for divorce he’s going to ask for it.  That’s less a result of his particular legal entitlement than a reflection of the fact that his attorney knows that if he doesn’t ask for it he can’t receive it—and better to ask for something you can’t receive than not ask and somehow get yourself painted into a corner later on down the line.

Whether you’re a stay at home mom or you’ve worked during the marriage, he’s going to argue that you don’t deserve support.  Whether you’re a military wife or a civilian, he’s going to argue that you don’t deserve support.  Whether you have kids or not, he’s going to argue that you don’t deserve support.  The bottom line?  He is going to argue that you don’t deserve support. Put the indignity aside, and get down to business.

What to expect in a Virginia spousal support case

If you want/need to receive spousal support, you’re going to have to play the game.  And you can pretty much assume that he’s not going to make it easy for you.  Stop taking it personally, and start figuring out what legal legs you have to stand on.  Trust me: your time will be much better spent.

In Virginia, unlike child support, spousal support isn’t based off of specific guidelines.  It’s not mandatory, and it’s not based on a specific, mandatory formula.  Though there ARE formulas in Virginia (a Fairfax and a Harrisonburg formula, to be precise), they aren’t binding on our Hampton Roads courts.  Maybe it would be easier if they were – but, alas, they are not.

Still, we use formulas, the Fairfax formula especially, to inform us about what a reasonable award of support might look like.  It’s a pretty good guideline, at least as a starting point, that can help us figure out where we might start, strategically, as far as what we’re asking for on a monthly basis for spousal support. After we determine what the Fairfax guideline allows, based on the incomes available in your particular case, we have to look at three specific pieces of information to determine how much support might be awarded and how long support might be received.

A caveat: spousal support is awarded with less and less frequency these days, and it’s also pretty safe to say that judges are less inclined to award permanent support than ever.  (Keeping in mind, of course, that permanent spousal support doesn’t mean “forever and ever, no matter what happens”; permanent spousal support means spousal support until (1) either spouse dies, (2) the recipient spouse remarries, or (3) the recipient spouse cohabitates in a relationship analogous to marriage for a period of a year or more.)

If the court were looking at support (or, alternatively, if your case were being negotiated and your attorney were making an argument to opposing counsel on your behalf), three factors would be scrutinized most closely.


1. Need and ability to pay

First and foremost, before spousal support is considered whether by the court or by your attorney, you’ll have to prove both that you have a need (which, honestly, is pretty easy) and that he has an ability to pay.

Typically, spousal support is considered based off of what was earned or acquired during the marriage, but this is also the point (it falls under that “need” category), where any other assets you might have would also be taken into account.  If you’ve got a huge trust fund, for example, that might be a consideration, even though it’s not a marital asset, that could potentially come into play here.

His ability to pay is also a factor.  That means that he has to earn significantly more than you.  If he earns less, or your income is relatively close to the same, spousal support will almost certainly not be awarded.  It’s simply from that “ability to pay” standpoint.

If you can’t demonstrate both a need and an ability to pay, you likely won’t receive spousal support – and your analysis can stop here, without moving beyond to any of the other factors.  If you think you can demonstrate both a need and an ability to pay, you can move on to factor number two.

2. The Virginia statutory factors

The factors in the statute often really allow the wife to shine.  Not to be stereotypical or anything, but, let’s face it—wives do ALL the work.  (I mean, am I right?)  These factors take into account the monetary and nonmonetary contributions of the marriage, meaning that all that non-wage earning stuff that you do is also taken into account when a judge looks at the entirety of your marriage, and your value in it.

The factors, from Virginia Code § 20-107.1, are as follows:

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.

Whether you’re making an argument to a judge or whether your attorney is negotiating with your husband’s attorney, these factors should form the basis of your argument.  I’m betting you won’t find it difficult to support your bid for spousal support with specifics regarding these factors.

3. Duration of marriage

The third factor, duration of marriage, refers to both whether you’ll receive support and, if so, for how long—so, needless to say, it’s kinda important. Obviously, if your marriage is of a relatively short duration (7ish years or less), there’s less pressure on your husband to provide support for you permanently.  From the court’s perspective, a man who was only married to you for a couple of years shouldn’t have a financial responsibility to support you forever.

In fact, generally speaking, a short term marriage doesn’t qualify for support.  That’s not to say that I haven’t had cases where spousal support was awarded in a short term marriage, but it’s definitely not the norm.  For mid-length marriages (marriages of 7-18ish years), you’re generally talking about more like support for half the length of the marriage.  Again, because we’re not talking about a long term marriage, we’re often not talking about permanent support—though there is certainly judicial recognition of the length of the marriage, and an appropriate level of support.

Long term marriages – marriages of 19+ years – are generally the ones where we’re talking about permanent spousal support.  That’s not to say that permanent spousal support is a given (and, again, we’re not talking about forever and ever support, just until one of those terminating circumstances occurs), but you’re likely going to be in a long term marriage if permanent spousal support is going to be awarded.

Ultimately, whether you’ll receive support, and, if so, how much, is a question that you’d need to discuss one-on-one with an attorney.  Spousal support is one of those loosey goosey areas of law, so you’ll want to get advice specific to your unique situation. For more information, or to schedule a consultation with one of our attorneys about your spousal support case, give our office a call at (757) 425-5200.