Let me say, before I go too far, that no judge can FORCE you to go back to work. At least, there’s no way he (or she) can issue any kind of order that will require you to return to work if you don’t want to. Getting a job after divorce isn’t something that someone else can actually force you to do.
That being said, though, there are things that can happen that might force your hand a little. Even though the judge can’t specifically require that you will return to work, the reality of your situation might make anything else an impossibility. It kind of all depends.
For women who have stayed at home (or otherwise seriously cut back their careers to support the family), spousal support is usually one of the first places we look to find a source of income that could sustain her after divorce.
Spousal support is definitely not guaranteed, and whether it’s awarded depends on how a court analyzes three different factors.
1. Need and ability to pay
The first thing the court will look at is whether (1) you have a need, and (2) he has an ability to pay. It’s easy to demonstrate that you’ve got a need–you’d just show the state of your expenses, the cuts you made professionally, and what you would be capable of earning if you were to re-enter the workforce. Secondly, though, the court would look at whether your husband has an ability to pay you–which means that he would have to earn significantly more than you. If your incomes are too similar, or if he earns less than you, spousal support is not going to be possible, no matter how much you might need to receive it.
2. The statutory factors
The Virginia Code also includes statutory factors that affect whether spousal support will be awarded. If your case goes to court, your attorney should be prepared to make an argument based around these factors. If you negotiate an award of spousal support, you’ll still need to discuss them.
The factors are as follows:
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
The length of the marriage also has an impact on an award of spousal support. Though it’s not totally set in stone, the length of your marriage (obviously) has a fair bit to do with not only whether you’ll receive spousal support, but, if so, for how long. Even though we are able to get other things awarded in certain situations, we still use the duration of the marriage as a barometer for how long support might be received. Generally, shorter term marriages receive spousal support for shorter periods of time–as in, not at all, or some portion of the marriage. In a marriage of ten to fifteen years or so, we often see spousal support awards of half the length of the marriage.
Permanent spousal support (which isn’t totally permanent, but lasts until the death of either party, the remarriage of the recipient party, or the cohabitation of the recipient party in a relationship analogous to marriage for a period of one year or more) is only a real possibility in long term marriages–generally speaking, marriages of 20 years or more.
Even so, we see less and less permanent spousal support awarded all the time. We see employment experts and other people involved whose job is to help determine whether or not a party would be capable of earning any income on her own. It doesn’t always happen, but in some cases (particularly in cases where spousal support is litigated), we see other people involved in an effort for the other side to make an argument that you are capable of earning something on your own. The judge may or may not accept the testimony of the employment expert, but sometimes we do see a judge order that a certain level of income be “imputed” to one party or the other.
This can work in your favor, when the judge orders that your husband is responsible for earning a certain level of income, and can’t become voluntarily underemployed. It can work against your favor when the judge orders that you could earn an income at a certain level, and makes you responsible for it–whether you choose to go back to work or not. (Imputing income to you would, obviously, lower your award of spousal support, or, in the worst possible scenario, reduce it entirely.)
How is spousal support determined?
Spousal support is determined by a formula. It’s not quite as easy as child support because the formula isn’t automatically binding on our courts here–but, still, we use a formula to come up with a guideline number that informs decisions we make regarding spousal support. Whether or not spousal support is awarded depends on how your incomes stack up against each other, so the total amount can vary dramatically.
The judge can’t FORCE you to go back to work. But if, for whatever reason, you find out that your spousal support award won’t be enough to support you in the lifestyle to which you have grown accustomed–you may find that you have no other choice.
For more information about spousal support, what you might be entitled to receive, or what choices you should be making now, give our office a call at (757) 425-5200.