If you’ve reached the end (or very near the end) of a long term marriage, you probably have a lot of questions. Because you’ve made a lot of choices for the sake of your husband and family, you’re probably wondering, “What happens next?” If you’re wondering about spousal support, you’re not alone.
When we’re thinking about spousal support, we’re thinking about three things. First, “Will I get spousal support at all?” Second, “How much spousal support might I receive?” Third, “How long can I receive spousal support?”
In this article, we’ll discuss spousal support at length, including each of the three factors that relate to whether judges award spousal support (or, in the case of a divorce that’s negotiated, how attorneys negotiate support with each other). We’ll also talk about the three questions you’re REALLY asking because, after all, it’s not just “Will I get spousal support at all?” (though that is one question you’re probably asking?). It’s also “How MUCH spousal support will I get?” and, finally, “How long can I receive spousal support?”
Let me just say now, before you fall prey to any misconceptions, spousal support is complicated, complex, and constantly-changing. It also involves a lot of analysis and weighing different factors. Spousal support is one of those areas of law that are a little “loosey goosey.” Unlike other things, like child support, where you just plug numbers into a calculator and get an answer, with spousal support there’s a lot of weighing of pros and cons and, if you ask an attorney about it, you’ll probably get “it depends” for an answer at some point along the line.
If I had to pick one, I’d definitely say that spousal support is the area (in divorce law at least) where there is the most room for argument and interpretation. In many marriages, regardless of how long they lasted, no spousal support is awarded at all. Why? Well, spousal support was always intended to be need-based. In the olden days, spousal support (or alimony, as it used to be known) was awarded because wives weren’t able (or allowed!) to support themselves financially outside of the home. If the parties wanted to divorce, the husband still had a financial responsibility to her that wasn’t terminated by the end of the marriage.
Today, women can work outside the home, and many do. As a result, more women than ever are able to support themselves without the financial backing of their husband or ex husband. In cases where incomes are similar, no support is awarded—regardless of how any of the other factors are considered. You can probably understand the logic, even if you disagree with the outcome. If both parties are working and earning close to the same amount of money, why would one spouse have a duty to the other financially after the marriage ends? According to the court, in Virginia at least, they don’t, even if they’ve been married for a really long time.
In Virginia, three factors affect whether or not a person will receive spousal support, how much, and for how long. Specifically, these factors are (1) need and ability to pay, (2) the statutory factors, and (3) the length of marriage. It’s a pretty complicated analysis, and you have to satisfy each factor before you can move on to the next. If you can’t demonstrate, for example, that you have a need and he has an ability to pay, the analysis won’t continue on to look at either the statutory factors or the length of marriage (yup, even if you’ve been married twenty or thirty years!)—spousal support wouldn’t be awarded because you don’t meet the first factor. Two of the three isn’t enough; you have to meet the standards set forth by all three factors to demonstrate that an award of spousal support is appropriate in your case.
All three factors, (1) your need and his ability to pay, (2) the analysis of the statutory factors, and (3) the length of your marriage relate to whether or not you’ll receive spousal support at all.
Let’s talk more about each factor in detail, but keep in mind that, even though yours is a long term marriage (so obviously you look like you’re in pretty good shape from the start of the analysis), you do have to satisfy each prong of the test to qualify for spousal support. The question of how much support you’ll receive is related to the first factor, need and ability to pay. The question of how long you’ll receive support is related to the third factor, the duration of your marriage.
Need and Ability to Pay
We’ve already briefly touched on the first part of the test: need and ability to pay. But what does it mean? How do you prove it? All good questions. In most cases, as you can probably imagine, it’s very easy to demonstrate a need. If we look at your income and your expenses and determine that you don’t have enough coming in every month to cover your bills, you have a need. It’s that simple. But, before you get too excited, keep in mind that your need alone isn’t enough; you still have to demonstrate that your soon to be ex husband has an ability to pay the support that you need. If we look at his income and expenses, and he doesn’t have enough to cover his bills, either, then you may both have a need—but under this scenario neither of you would have the ability to pay. For your soon to be ex to truly have an ability to pay you spousal support, he would need to earn significantly more than you.
How much more is “significantly more’? Another good question, but it’s difficult to say. It’s not like there’s a certain benchmark, so that I can say “if he earns 23% more than you, it’s enough.” There is no benchmark, so it can be hard to tell, at a glance, whether he earns enough more to require him to pay support.
Not only that, but we also don’t have a specific formula that I can show you so you can calculate spousal support on your own. In the Hampton Roads area of Virginia, there is no specific, court-accepted formula for calculating the amount of spousal support.
That’s not to say that formulas don’t exist. In Hampton Roads, there are no formulas that are binding on the courts—meaning that the courts don’t have to use them. Still, that doesn’t mean that there aren’t formulas that we use, even if the courts don’t always go by them. In other areas, like in Fairfax and Harrisonburg, there ARE spousal support formulas. We use them (particularly the Fairfax guidelines) to help give us an idea (or, at least, a baseline) of what we might be able to expect, as far as spousal support is concerned.
Attorneys in our area use the formulas to help us determine a starting point. They aren’t exactly the same, so sometimes one formula comes out with a support guideline that’s a little higher than the other. All formulas are the same in that they take into account your respective incomes, and provide a figure that we use as a guideline for determining how much you’ll really receive. Still, exactly how much support you’ll receive is directly proportional to how much he earns compared to what you earn.
The statutory factors
Next, if you’re able to demonstrate both that you have a need and he has an ability to pay, you’ll move on to an analysis of the statutory factors from the Virginia Code.
Depending on the type of case you’re facing, the statutory factors can be applied differently. If you’re negotiating a separation agreement (either on your own or with the help of an attorney), the factors will likely be applied a little bit differently than they would be if your divorce was litigated (one where the judge decides whether spousal support will be awarded). If you’re in front of the judge, obviously, your attorney will want to put on a formal analysis of each and every factor to help demonstrate why you should receive a (large) award of spousal support. Negotiations, on the other hand, are different—and formal analysis of each factor rarely happens. Instead, the attorneys negotiate the exact award of spousal support, depending on their physical, mental, and emotional states, their ability to work, and so on.
The statutory factors are:
1. 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, as are necessary to consider the equities between the parties.
What do the factors show? What is the judge looking for? Well, the factors try to flesh out who did what in your marriage; basically, who helped, and who hurt? It’s not a way of placing blame so much as demonstrating how responsibility was shared. It’s a way of justifying, and financially compensating, a person whose prospects have been lessened by the marriage (typically, the wife, because she made so many sacrifices for the sake of the family) for the good things they did during the marriage that ultimately led to the decline in future prospects. Does that make sense? It’s not so much a way of punishing a person who has done wrong (even though the negative monetary and nonmonetary contributions factor in here), but a way of bolstering a person who has done a lot but maybe earns less as a result.
We like the statutory factors because, most of the time, they support our argument for support. These factors usually really allow moms to shine, because they highlight all the good things mom did for the sake of the family—not just earning money by working, but also giving credit for the carpools, the homework help, the bath times, meal planning, grocery shopping, cooking, cleaning, and all the little things that it takes to keep a family running. (Let’s face it, moms usually do most of that, right?)
These factors relate specifically to whether a person will receive support, but have less to do with how much and how long.
Length of the marriage
The length of time your marriage lasted matters when it comes to spousal support. Duration of marriage relates to two things: (1) whether you’ll receive spousal support at all (chances are, if you’ve been married just 6 months, you won’t get support), and, if so, (2) for how long.
Why? Well, in the court’s view, you are more or less dependent on your husband based on how long your marriage lasted. A person who (like you), has been with her husband for 20 or more years probably IS reliant on her partner. If you’ve had children, you may have decided to stay home, work from home, or in some other way cut back your career for the sake of your family. You have made decisions to benefit your family that may have harmed you personally, both in terms of your earning potential and your ability to get back on your feet after divorce.
Not have you had to make sacrifices for the family, but your partner shares the responsibility for the decisions you’ve made as a team. Whether you decided to stay at home to raise the children or just cut back a little at work, these are decisions that could affect your potential to earn after the divorce, if you decide (or are forced) to return to the workforce. Since it was a decision that he participated in, he is also responsible (at least partially) for helping to support you after the divorce.
Keep in mind, though, that there is nothing in the Code of Virginia that says that spousal support is automatically awarded in long term marriages. It’s not! Several years back, the General Assembly considered making a law that said something like that—basically, it considered whether and how long you’d receive spousal support based on the length of your marriage. That law did not pass. No law exists that says that, based on how long your marriage lasted, you will or will not receive support.
Still, because of that proposed law, a lot of judges and attorneys have a mindset that certain lengths of marriage entitle you to different awards of support. In marriages that have lasted more than twenty years, the presumption is that support will be awarded for as little as half the length of the marriage or as long as, well, indefinitely. (Keep in mind, though, that permanent spousal support, in Virginia, anyway, isn’t “permanent.” It lasts until either spouse dies, until the recipient spouse—that’s you—remarries, or cohabitates with someone else in a relationship like marriage for a year or more.)
So what can you expect? Half the length of the marriage is probably a good place to start, though it is possible to go upwards or downwards, depending on the facts that surround your case. Keep in mind, too, that these predetermined amounts of time aren’t set in stone.
If your marriage has lasted more than twenty years, you’re at least at a good starting point. Chances are, both he and his attorney (if he has one) are aware that it’s something you’re likely to ask for, so it’s a good time to start thinking about what your argument for support will be. You should be thinking about the things we’ve already talked about: your positive monetary and nonmonetary contributions, and your potential to work. Have you been working? Can you start working? Are you disabled? What can you reasonably earn? An attorney can help you figure out where to get started, especially if you believe that receiving spousal support is critical to you being able to get back on your feet again.
Since your marriage has lasted a considerable period of time, as long as the other factors support your award of spousal support, it’s probably going to be possible for you to receive support. Of course, your individual facts and circumstances matter a lot and can change this analysis, but you’re at least off to a good start. For more information or to get the help of an attorney in determining how much support you’ll receive, if any, and for how long, give our office a call at (757) 425-5200.