Imputation of Income in Virginia: When it Helps You

Posted on Jan 22, 2016 by Katie Carter

If you’re the main breadwinner in your family and you’re now headed towards divorce, you’re probably a little concerned.
And—that’s probably an understatement. Financially, divorce is probably pretty terrifying to you, even if it’s something that you know you want.
Spousal support is probably the biggest issue on your mind because, whether you have kids or not, you’re afraid that you’re going to have to pay him just to end things.
Spousal support is probably also the biggest issue on your husband’s mind, too, because he understands that, because of the family dynamic, he has been placed at a distinct financial disadvantage. Though fewer husbands than wives receive spousal support, the number of husbands who get it are definitely on the rise. As more and more families are making alternate arrangements for the care of the kids and all that, more and more dads are staying home or cutting back.
Though it may be an issue of pride for him, more and more husbands are willing to accept spousal support than ever before. If you’re wondering about spousal support, you should talk to an attorney about your particular case. Or, if you’re short on time and need some details quickly, you can just read this article.
First, let’s talk about spousal support. Specifically, let’s talk about how spousal support is awarded.
In Virginia, spousal support awards are based on three things: (1) need and ability to pay, (2) the statutory factors, and (3) the duration of the marriage. For a more in depth discussion of these factors affecting spousal support, click here.
These three things determine whether or not spousal support will be awarded and, if so, for how long. Generally speaking, for a dad who has stayed at home or significantly reduced his career (to his detriment) for the sake of the family, his attorney will be able to make a pretty solid argument for why he might deserve to receive spousal support.
On the other hand, though, there are tools at our disposal that we can call into service to help determine whether spousal support should be awarded—and, if so, how much and for how long. Because it’s really all three of these things (whether it will be awarded, how much will be awarded, and how long could he possibly receive it) that go into making an award of spousal support, and all three of those things will have a distinct and substantial impact on how palatable (or unpalatable) an award of spousal support is to you. Let’s talk about it more.

How much support could he get?

This is a complicated question and, in fact, the whole discussion of much money he could receive is determined is really part of a different conversation. The question of how much support he’ll receive isn’t at all related to the 3 criteria I just laid out; how much support you’ll receive depends, specifically, on your income and your husband’s income. For starters (to satisfy the need and ability to pay prong of the 3 part test), he (and his attorney, if he has one) will have to prove that he earns significantly more than you.
“How much?” is a hard question to answer, because, in our area at least, there are no formulas to specifically establish it. Unlike child support, where you plug the relevant numbers into a formula and out pops a guideline figure, spousal support has no accepted guideline in Hampton Roads. To get an idea of what spousal support might look like, we often use other formulas (there are formulas that are applied in both Fairfax and Harrisonburg, for example)—but they aren’t binding on our judges.
For the best idea of how much support he might receive, you’ll probably want to schedule an appointment. You can schedule an appointment with our office at (757) 425-5200.
So why do I mention it, if only to say that “how much” is part of a bigger conversation? I say it because, though this is often the first question on most people’s minds, there are other ways we can reduce his overall entitlement to support—and that starts, first, with whether he’ll receive it at all and, if so, for how long.
Specifically, what I’m here to talk about today is how income can be “imputed” to him, effectively requiring him to work and (in many cases significantly) reducing your financial obligation to him over the long term. Stick with me: I’m getting to it.

How long could he receive support?

This is a tricky question, too. There’s no bright line rule that says specifically how long you have to be married to qualify for spousal support. A number of years back there was a law proposed that would have established certain requirements based on the length of marriage, but that law never passed. Still, the length of marriage is something that most judges and attorneys look at, and you can be sure that your husband’s attorney will be making assumptions based on how long you’ve been married. Let’s look at what the law originally proposed.
Even though it’s not the law, it matters how long you’ve been married. For shorter term marriages (which we sort of loosely define as marriages of 7 years or less), the presumption was that no spousal support would be awarded. That doesn’t mean that, after 7 years or fewer, it would be impossible to receive support. It’s just a general guideline.
For medium-length marriages of around 8 to 19 years or so, the presumption was that spousal support could be awarded for half the length of the marriage. Then, for longer-term marriages of twenty or more years, the presumption was that permanent spousal support would be awarded.
Now, before you celebrate (or lament), let me say: this law did not pass. And, even if it had, in the interim period, permanent spousal support has become less and less common, which is good news for you.

What’s permanent spousal support?

Permanent spousal support, unlike defined-duration support, goes on until something happens to terminate it. Specifically, (1) the death of either party, (2) the re-marriage of the recipient spouse, or (3) the cohabitation of the recipient spouse in a relationship analogous to marriage for a period of one year or more terminates spousal support.
Permanent spousal support is awarded less and less frequently all the time. I still see it happen, especially in cases where one spouse has stayed at home, but it’s definitely not guaranteed. Again: good news for you.

How is spousal support established?

Spousal support can be established in one of two ways: either it’s established in a signed agreement between the parties, or it’s litigated in front of a judge.
This is a tricky part, too. Obviously, it’s cheaper and easier to negotiate a signed separation agreement rather than bring the whole spousal support issue up in front of a judge. Still—how do you get a signed separation agreement? Well, to put it simply, you have to actually reach an agreement. You know. With your husband.
I’m sure you can understand how that might be tricky, especially when your interests are so obviously diametrically opposed.
Many judges believe that ex spouses, regardless of how long they’ve stayed at home, are responsible for going out into the world and at least attempting to earn some money on their own. Whatever they are capable of earning is, according to these judges, their responsibility to earn.
Of course, this expectation is tempered with reality. It’s not like a person who has stayed at home for twenty years and not held an outside job will quickly and easily (in most cases) waltz into a job making $100,000 a year. Mostly, judges in these types of cases just believe that, even if all he is capable of earning is $8 an hour working at GEICO, he should at least earn that, rather than staying at home and being more or less permanently dependent on his ex spouse.
Knowing all this, you probably won’t be all that willing to negotiate with your husband where permanent spousal support is concerned; you might be tempted to offer less (say, for half the length of the marriage) and then, if he wants to fight it, force him to take you to court and let the judge decide. I probably don’t need to tell you that this is already a disadvantage to him and an advantage to you. As the spouse who has been the breadwinner, you have more money to pay attorneys to go to trial over these issues. Not that you want to, of course, but compared with him, you’re in a stronger bargaining position. It may very well be that he can’t even afford to take you to court over this type of issue, especially considering that, depending on your unique circumstances, the judge may not be all that inclined to see his side of the issue, anyway.
For many people, breadwinners and dependent spouses alike, the costs associated with litigation make the alternative a little unpalatable, especially since, in many cases, it’s not exactly guaranteed that you’ll get what you’re after (i.e., permanent spousal support) if you let the judge decide.

What is imputation of income?

I told you I’d get to it. Here we are: imputation. So, remember how I said that judges sometimes feel that if you’re capable of earning $8 an hour, you should be earning it?
Here’s what we see happening some these days. If you and your husband can’t reach an agreement about spousal support, it’s going to court. In the courtroom, because you have to present evidence, experts sometimes get called in to testify.
In spousal support cases, one of the experts we see most frequently is an employment expert. An employment expert is a person who comes in and tries to evaluate how “employable” a person is. In your case, the employment expert would look at your husband’s employment history, education, experience, and other qualities to determine what kind of job, if any, he could hold, and how much money he could reasonably be expected to make.
If the employment expert testifies at trial and says that he could get a job at GEICO making $8 an hour, the judge may impute income to him. (Notice I said he MAY; it’s not required.) What that means, essentially, is that, whether he chooses to work at GEICO (or find some other similar job) or not, he could be held responsible for earning $8 an hour.
Does that mean he won’t receive support at all? Not necessarily. Again, that would kind of depend on how spousal support was calculated in your case. To get an idea, if you came into our office, we’d start by running guidelines—and negotiate from there. It’s all a question of how your income and his income compare, and whether, even with the $8 an hour (or whatever he might earn) factored in, spousal support is still warranted.
The judge can’t MAKE him get a job, but he can force his hand a little bit.
Spousal support cases are complicated and you will probably want an experienced attorney to help. For more information, or to schedule an appointment with one of our licensed and experienced divorce attorneys, give our office a call at (757) 425-5200.