How to get MORE Virginia spousal support

Posted on May 22, 2015 by Katie Carter

You’re definitely not alone if you’re wondering, “is it possible to manage to get more spousal support from my soon to be ex husband?” Whether you and your husband (or your attorneys) have already begun discussing spousal support or not, you’re probably going over all your expenses in your mind and wondering how to negotiate (or, worst case scenario, litigate) to get the best award of support possible—both for your own sake, and for the sake of the rest of your family.

I have had this same conversation countless times with clients, potential clients, and women who attend my Second Saturday seminars. Divorce is a pretty tricky time, financially and emotionally, for most people. If you’re worried about your finances, either in the mean time for post-divorce, you’re not alone—and you’re wise to start thinking about things now, and trying to get a plan in place.

You probably already know that spousal support is complicated, and whether you’re entitled to receive it will be based on a complicated weighing of three factors: (1) need versus ability to pay, (2) the factors found in the statute, and (3) the length of your marriage. For more information about spousal support, or to try to determine your likelihood of receiving it, click on the following links based on the length of time you’ve been married: 0-7 years, 8-19 years, and 20+ years.

For the sake of this article, though, let’s just assume that you will receive spousal support.

A wide range of spousal support awards are possible, depending on your circumstances. There are many different types of spousal support, some of which are permanent (meaning until death of either spouse, remarriage of the recipient spouse, or until the recipient spouse cohabitates in a relationship analogous to marriage for one year or more), some of which last a specific amount of time, and others that last long enough to accomplish a certain objective (like, allow the recipient spouse time to get a degree or career training, so that she is able to earn more over her lifetime than otherwise). It’s possible to receive one monthly amount that stays the same for the entire length of the award, or to receive an amount that is staggered and either increases or decreases over time.

Whatever it is, though, you want more. Right? Of course right. And it’s understandable. You want to get back on your feet with as little disruption to your life as possible, and you’d probably prefer not to have to get a roommate or move back in with your parents. So, ideally, enough money to pay for everything would be great.

Whether you’re working or not, your mind is probably already spinning with different ideas for how to manage to get more support. The two most common ideas I hear are (1) should I quit my job so I can get more in spousal support, and (2) should I wait to go back to work? It makes sense, doesn’t it? Because you’ll get more in support if you’re not earning money, right?

Let’s discuss.

If I already have a job, should I quit so that I can get more Virginia spousal support?

So, you’re already working, and you’re wondering if that’s hurting your case more than helping it. Sure, you earn some independent money, which is nice, and you have a real resume, but since the spousal support calculation takes into account how much money you’re bringing in, you can’t help but wonder whether you’d be better off NOT working.

Well, it’s not really quite that easy, especially if the court is involved.

Unfortunately, it’s usually not a very good idea to quit your job so that you’ll get more in support. In fact, sometimes, it can really backfire.

Think about it. What if your husband decides to do the same thing? What if, one morning, he just woke up and decided to quit his job, so that he wouldn’t have to pay spousal support to you. You’d probably say, “That’s not fair!”

And your husband wouldn’t be the first husband in the history of the world to try it. In fact, plenty of husbands have tried to quit their jobs (or reduce their income) so that they can avoid paying support to their wives. The courts have experience with this, and judges are not impressed. Your husband can’t do it, and neither can you. Why? Well, the court can do something called “imputing” income to you, which means, essentially, making you responsible for earning a certain amount of money, even if you’re not making that income now. If you can show that your husband earned $100,000, and then took a job at McDonalds flipping burgers for $23,000 annually, you have a pretty good argument that the court should impute $100,000 worth of income to him—meaning that he would then be responsible for paying you the support you would have had if he was still earning $100,000 (even though he’s only earning $23,000 at McDonalds).

Similarly, if your husband’s attorney is able to prove that you quit your job (versus being fired) in order to maximize your spousal support award, the judge has the authority to impute what you could have earned to you all the same. Then, you’d receive spousal support like you were still earning whatever you were earning before, plus you’d earn less at work, which backfires in a pretty big way.

But what if I was fired from my job, and it’s not my fault that I’m not working now?

There are exceptions to every rule, right? If you quit your job in order to make your husband pay you more in support, it’s very likely that income could be imputed to you. If you’re fired from your job for a legitimate reason (note that I say legitimate, and not that you behaved so badly that you were fired just in an attempt to get more spousal support), it’s possible that the judge could take your unemployment into account when determining spousal support.

If your husband’s attorney is doing his job, though, they’ll do lots of research into the reasons you were fired. The information that the attorney finds, and the way the judge interprets it, can have a lot to do with your ultimate award of spousal support. If it looks like your intentional misbehavior caused you to be fired, you could still find income being imputed to you. Even if it doesn’t look that way, the judge may choose to assume that you’ll easily find another job of the same level, or at least find that you’re capable of doing so, given the fact that you just had a job of that caliber, and still make you responsible for earning that amount of money.

All of that is a long-winded way of telling you that it really depends. You could find that getting fired leads to an increased award of spousal support, but you could also find that the judge still imputes income to you, whether or not your bad behavior ultimately led to your firing. My advice? Don’t get yourself fired assuming that it will lead to an increased award of spousal support. If you happen to be fired or laid off during your divorce, though, it’s certainly worth trying to negotiate or litigate for a higher award of support.

Should I wait to go back to work? Or get a job earning less than I think I could earn?

Along the same lines, you may also think it’s a good idea to avoid going back to work for a little while to get as much spousal support as possible. Again, although it’s definitely possible that this could work, it can backfire, too.

It’s probably a good idea to remember that judges really have seen almost everything, so no clever scheme you’ve come up with will really surprise them. Recently, a Virginia Court of Appeals case came down where spousal support was the issue, and the wife was refusing to go back to work. The judge was so annoyed by her attitude that he seriously cut her award of spousal support, and gave it to her for a much shorter time that she otherwise would have received it.

Pretty similar things can happen if you’re purposely underemployed, too. In fact, in either scenario, you’re probably risking the involvement of an employment evaluator. Over the years, we’ve seen this happen more and more often. So, what’s an employment evaluator? It’s someone who is hired to determine whether or not one party or the other is capable of working, and how much they would be able to earn. They conduct a complete analysis, looking at a person’s education, experience, and work history, and come up with recommendations, complete with specific places with jobs open that fit the person’s ability levels.

I’ve seen employment evaluators used more and more often. Their reports are often admitted into evidence in courts, and some judges have even been known to impute income to the non-working or underemployed party.

So, how can I get my husband to pay me more in support?

I think probably the best thing to do, if you want to maximize your award of spousal support, is concentrate on the factors, and make a killer argument on your own behalf. Will it work? Who knows? But it’s the best course of action because it’s supported by law. It can’t come up and bite you later, either, because you’re considering things you should be considering.

If I were you, I would concentrate on the law, and make my best argument. Prepare for the worst, and hope for the best. If my spousal support award wasn’t as high as I hoped it would be, I’d get a job—even if that ultimately means that the award of support could be modifiable. Is your award of support modifiable? Generally speaking, spousal support provided for by agreement of the parties (unless the agreement specifies otherwise) is not modifiable; spousal support ordered by the judge, on the other hand, is modifiable.

In the short term, though, make the best choices you can for yourself, for your children (because, after all, any extra income you make on your own, or fail to make for yourself, affects them too!), and for your future. Let your spousal support award be whatever it is, but don’t do anything yourself that will jeopardize that award. For more information about spousal support, give our office a call at (757) 425-5200.