Is it hard to get Virginia spousal support?

Posted on Jul 8, 2024 by Katie Carter

Spousal support is one of the more contentious topics in family law, as I’m sure you’re already aware.  In Virginia, the law on spousal support is not at all like child support, which is established by a formula and applied across the board.  No, spousal support is a lot more flexible on three points – first, whether it is awarded at all, and then, secondly, how much, and, third, for how long.

Laws regarding spousal support have gotten more and more conservative over time; gone are the days when an ex husband would be paying spousal support for an ex wife indefinitely.  Though long term spousal support is still theoretically possible, recent changes to the law have made it much less likely than ever before.

Specifically, spousal support is no longer taxable to the party receiving it or tax deductible to the person paying it.  This means that – although you’ll likely be pleased, on the surface, to find that you won’t pay taxes on any support award you might receive – he has even less incentive to agree to pay it, meaning that spousal support is more often litigated now than ever before.  (And, keep in mind, too, that you are already automatically the lower wage earner if we’re talking about spousal support at all, so you have a reduced ability to litigate against him.)

It’s also modifiable more often than ever before, especially when your soon-to-be ex husband hits retirement age.  It used to be that spousal support was paid beyond retirement – after all, just because he has enough retirement doesn’t mean that you do – but, these days, that’s not so.  The court typically looks at your entitlement to any retirement earned during the marriage as a separate category of benefit (property division) than support that is paid.  You have a property entitlement to the retirement; a support entitlement is different.

More and more often, I see shorter terms in spousal support awards.  Where before a 20+ year marriage might have qualified someone for longer term support, these awards are now often mitigated by the modification in retirement.  The longer you’ve been married, the more likely it is that your soon-to-be ex is closer to retirement age.  So, if you married at 20 and have been married 40 years – you’re 60, and he’s 5 years from retirement age.  Five years of support for a 40 year marriage? It happens now.

In most short to mid-length marriages, there was already a defined duration – usually, half the length of the marriage – that support would be awarded (assuming, of course, that support was awarded at all).  Nowadays, though, it’s possible to receive a longer term of spousal support for a mid length marriage than you might receive in a longer term marriage, like the above 40-year marriage example.  (And before you say, “Well, that’s an unlikely situation, anyway,” I’ll have you know that gray divorce – that’s what they’re calling it – is majorly trending these days!)

But the original question was, “Will I get spousal support?”  It’s a hard one.  It’s not an easy answer; it’s not cut and dry.

In Virginia, we look at three different things to determine whether spousal support will be paid at all and, if so, for how long.

  1. Need versus ability to pay

There has to be a difference in your income levels.  He needs to earn significantly more than you, otherwise there’ll be no support awarded.  You will need to show that you need the money, so, basically, that what you have coming in doesn’t cover your basic needs.  He should, ideally, have a surplus, but mostly what we’re looking at here is that he earns significantly more.

  1. The statutory factors

The Virginia Code outlines 13 factors that determine whether spousal support will be awarded, and these are factors that really allow women – and, particularly, the burden of the unpaid domestic work that you’ve been doing – to shine.  These generally work in your favor, not against you, but it’s important to remember, especially if you’re litigating, that the judge will want to hear evidence and testimony related to these factors to show why you ‘deserve’ support.

  1. The duration of the marriage

Like we already noted, the length of your marriage matters.  Shorter term marriages may not qualify for support at all; in mid-length marriages, you might see support for half the length of the marriage.  Longer term marriages mean that indefinite, or long term, support is a possibility, but, again, there are other mitigating factors that might impact the duration of that award.

The AMOUNT of support you’ll receive is based on a formula, but loosely – because it’s only binding in our courts for temporary (pendente lite) awards.  For ‘permanent’ awards (meaning final awards of support, not indefinite awards), the formula isn’t binding.  Still, it’s where we start in most negotiations or in litigation, if it comes to that.

It’s always a good idea to run support – child and spousal – calculations in an initial consultation with a lawyer.  (As far as I am aware, there are no reliable online support calculators for Virginia.)  That way, you can make decisions and start to plan for the choices you’ll need to make for your future.  It’s hard (or even impossible) to make decisions without understanding what your rights and entitlements are under the law, so the more information you have the better off you’ll be.

For more information, to schedule a consultation, or to request a copy of our divorce book for Virginia women, visit our website at or call us at 757-425-5200.