Spousal Support and Social Security

Posted on May 12, 2017 by Katie Carter

People get divorced at all of life’s stages. Just because a couple has been married for 30, 40, or even 50 years doesn’t mean that they’ll stay together until death do them part. We see lots and lots of really, really long term marriages dissolved for all sorts of different reasons. In a lot of ways, it’s really not so different from any other divorce; there is what there is to divide and we do it, either in a contested or uncontested format, and get our client the fresh new start she’s after. In some other ways, though, divorce is different after a certain point – and, in many cases, being on a fixed income makes things dissimilar especially as it relates to spousal support.

Spousal Support and Social Security

After retirement, most Americans claim social security. Some claim it earlier and some claim it later, but, if they or their spouse have paid into social security, they’ll have some form of retirement income available to them through the federal government.
As far as your entitlement to social security is concerned, that’s not really something I can help you with. You’ll want to talk to someone with the federal government, or do a little research on the social security webpage  to find out what you really might be qualified to receive. Visit the website to find out about your eligibility and the extent of your benefits, and to learn whether it might be better to receive your share or your portion of your husband’s.
What I’m here to talk about today is how spousal support is affected by what you receive from social security. In my experience, some of the hardest cases for spousal support happen after both parents are retirement age and receiving social security.

How does social security affect spousal support?

Spousal support is complicated in Virginia divorce. To determine whether spousal support would be awarded in any given case, the court would look at three different but interrelated factors.

1. Need versus ability to pay.

First and foremost, in a spousal support case, there must be a need and an ability to pay. The need part is generally pretty easy to prove, especially for older people living on a fixed income. The “ability to pay” part, though, can be tricky.
While your husband may have earned substantially more than you during his working career, his social security income is likely to be far less. Additionally, then, if you claim your portion and your portion of his, the disparity could be pretty small compared with what it used to be when he was working full time.
I’ve seen this happen, even in cases where the husband earned a substantial income during the marriage and wife stayed at home. Though his social security will likely be more than hers by virtue of the fact that what he earned during the marriage was more than what she earned, that doesn’t necessarily mean that spousal support would be awarded.

2. The statutory factors.

The Virginia code also has factors written into the statute that affect whether spousal support will be awarded. In cases where spousal support is litigated in front of a judge, these factors are pretty important. They 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 and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce, as are necessary to consider the equities between the parties.

3. The duration of the marriage.

The duration of the marriage affects both whether spousal support will be awarded and also, if so, for how long. (So, needless to say, it’s a pretty important factor to consider when it comes to spousal support!) Though there’s no law that specifically defines how long you must be married in order to receive spousal support, lawyers and judges look at the duration to give them an idea. (Several years back, there was proposed legislation that would have made it a law; these days, though, it’s just a presumption.)
Generally speaking, in a marriage where the spouses are already receiving social security, we’re talking about a long term marriage—a marriage of 20 or more years. And, even though it’s not guaranteed (nothing is ever guaranteed in divorce), typically speaking these marriages qualify for “permanent” support.
Keep in mind, though, that “permanent” support isn’t “forever and ever” support. It’s permanent in that it lasts until (1) either spouse dies, (2) the recipient spouse remarries, or (3) the recipient spouse cohabitates in a relationship analogous to marriage for a period of one year or more.
Technically, though, in a long term marriage, we often start off talking about permanent spousal support—but we may not ever get to that point if the other factors don’t first support an award of spousal support. Living off a fixed income, like through social security, makes it harder to get past the first two prongs of the test.

How is spousal support calculated in Virginia?

We already looked at the three factors that affect whether (and how much and for how long) spousal support will be awarded. But how do Virginia courts calculate spousal support?
We use a formula. But, in Hampton Roads, that formula isn’t binding on our courts. It’s something that we use as a guideline, to inform us about what might happen in court if we were to litigate a spousal support issue.
If you were to come in for a consult, your attorney would calculate support based on the guidelines, even knowing that there’s nothing that forces the court to use a guideline level of support. Still, it’s helpful and informative in the sense that it gives us an idea of what we might expect to happen. The court can do something different, of course, (remember how I said nothing was guaranteed) but often doesn’t.

I’m receiving social security. Will I qualify to receive spousal support?

It’s really hard to say! I think the first thing to consider is whether there’s a significant disparity in income. Just because he’s earning more doesn’t necessarily mean that he has an ability to pay, and the court does NOT require that the parties “equalize” their incomes, whether they are on social security or not. In fact, I almost never see that happen—and when I have seen it happen, it was by agreement, and not through a court order.
I think it’s safe to say that, in most cases, spousal support won’t be received unless your spouse earns significantly more than you. In cases where both spouses are receiving social security income, we see that disparity exist less often than you might expect.
That doesn’t mean, of course, that you’re not entitled to other things. In fact, in retirement, other things (like when you can draw on IRAs or 401(k)s or other retirement accounts) are easier, which helps to offset the possibility that you might not receive spousal support. Of course, everything is determined on a case by case basis.
If you are receiving social security income and you’re wondering about spousal support, give our office a call at (757) 425-5200 to schedule a consultation with one of our licensed and experienced Virginia divorce and custody attorneys.