Should I waive spousal support?

Posted on Jun 24, 2022 by Katie Carter


I like to say that, when it comes to divorce and custody cases, there aren’t a lot of rules. I mean, there are some rules – after all, we have to follow the Code of Virginia – but what I mean is that, when it comes down to determining what’s right and wrong for you and your family, and how you want to move forward, you should feel free to come up with something that works for you.

That being said, though, you shouldn’t settle for less than what you’re entitled to receive. In general, I think that the divorce laws aren’t particularly generous, so I am of the opinion that if the law says you should receive something, you should receive it – or something of similar value as a trade off.

Spousal support is one of those tricky areas of law, though. When we’re talking about spousal support, we can already assume that there’s a pretty significant disparity in income between the parties. Not only that, but we also know that, since the law changed which allowed spousal support payors to deduct the spousal support they pay from their taxes, there’s very little incentive for higher earning spouses to pay support to their former partners.

It creates a bit of a tricky landscape. You have a lesser earning spouse with a diminished ability to litigate against the higher earning spouse, and a higher earning spouse who has no incentive to pay (and every incentive to stall, to drive up the other spouse’s costs, and to refuse to be pinned down to a specific agreement).

We also have guidelines that aren’t overly specific. As far as pendente lite support is concerned, guidelines are binding – but for permanent support (which just means that its part of a permanent order, not that it’s payable forever), the guidelines aren’t binding. In families with combined monthly incomes of over $10,000, the guidelines aren’t binding, either – so, that just adds another level of difficulty to these cases.

So, it’s not like your entitlement to a portion of the retirement, or to your share of the equity in the marital home, which is pretty easy to determine. Spousal support is an area of law where there’s a lot of potential for difficulty, which can result in time consuming and expensive litigation.

So, should you waive spousal support?

Geez, no! Or, at least, not an out and out waiver.

It may be that your soon to be ex is willing to trade something to get out of a spousal support obligation. Typically, spousal support is an amount of money paid each month. Depending on the length of your marriage (and a number of other factors), its often awarded for a certain period of time, unless it’s a very, very long term marriage (generally, 20+ years), in which case its possible that it could be awarded permanently.

Indefinite support – meaning, spousal support without a specific end date (as opposed to ‘permanent’ support that comes about from a final order in a case) is more and more rare these days, but theoretically still possible.

As a first step, you should talk to an attorney one on one to get a sense of how much support you might be entitled to receive, and for how long, because this will have a lot to do with how you negotiate support moving forward.

Would you be willing to accept, say, all the equity in the home in exchange for your waiver of spousal support? What about keeping your own retirement accounts, or taking a greater share of his? Now, that really all depends.

If you were to take, say, all of the equity in the home in lieu of support, it wouldn’t be classified as spousal support anyway, but one of the major advantages to avoiding the whole monthly support trap is that then you also avoid the terminating factors. Specifically, the statute provides that spousal support terminates in the event of (1) death of either party, (2) remarriage of the recipient party, or (3) continued cohabitation in a relationship analogous to marriage for a period of one year or more. So, you could remarry, or live with a partner, without fear of your spousal support terminating.

It’s hard to calculate exactly how much support you’d receive, especially because it’s possible that he could, for example, die. He could die very early, leaving you with nothing. Or he could retire, and petition to modify your spousal support. Generally speaking, we suggest life insurance provisions in order to protect our clients from an untimely death, but it’s not always possible to protect against every possible scenario.

Getting the money in hand early, even if you are tempted to accept less than you think you might receive in a monthly award, might be tempting. You could even look at it as an opportunity to take the bulk of the money and invest it over the term that you’d otherwise having support money trickle in each month, which may also make the offer even more attractive.

For a lot of people, avoiding the fighting – and the expensive litigation – that comes with arguing over spousal support is also really important. Are you wanting to protect your children and set up a successful coparenting relationship? That can be an important goal, too.

It’s important to discuss your goals with your attorney, and try to come up with creative solutions to address any issues you might come up with. It’s possible that ‘waiving’ your spousal support in favor of a greater allocation of some other asset might be wise – but it’s definitely worth discussing!

For more information or to schedule a consultation with one of our women-only divorce and custody attorneys, give us a call at 757-425-5200.