Spousal Support in Virginia Divorce

Posted on Oct 31, 2014 by Katie Carter

In many, many cases, married women curtail their careers in order to be able to give more of themselves to their husbands and families.  It’s a good decision, a solid decision, but it’s not one that comes without consequences.  In the event that things don’t work out the way you planned, spousal support is there to help you get back on your feet again.

Spousal support awards can work in lots of different ways, and we’ll talk about that today.  We’ll talk, first, about whether you might be entitled to receive spousal support at all, what kinds of support might be available to you, and how support is modified, if at all.

    What is spousal support?

Spousal support is basically the same thing as alimony, except that spousal support is designed to be gender neutral.  Husbands and wives have an equal ability to request spousal support, assuming, of course, that the circumstances support the award.  We’ll talk more in a minute about how to determine whether you qualify to receive spousal support, based on the circumstances, but for now you should just understand that either a husband or a wife can request spousal support in a divorce action.

    Will I receive spousal support?

Spousal support is pretty complicated, and there are a lot of different factors that affect whether or not you (or your husband) will qualify to receive it.  Throughout this article, I’m going to assume that you are going to be requesting spousal support from your husband, rather than him requesting support from you.  Know, however, that it is possible—and that it works the same way, just in reverse.  If you’re concerned about your husband’s ability to request support from you, you can read on, too.

Basically, to determine whether you qualify to receive spousal support, you’ll need to look at this three part test: (1) need versus ability to pay, (2) the statutory factors, and (3) length of marriage.

To start with, we have to look at whether the receiving party has a need, and whether the paying party has an ability to pay.  Without being able to answer “yes” to both of those questions, spousal support won’t be awarded.  It’s usually pretty easy to demonstrate that the receiving party has a need.  Using an income and expense sheet (LINK), we can provide the judge with evidence of your monthly budget.  We can show what your expenses are, how much you earn, and how you don’t have enough to make ends meet.  That’s enough to show the court that you have a need.

But need alone isn’t enough; we still have to show that the paying party has the ability to pay.  If the paying party shows the judge a budget that demonstrates that his or her income is larger than the receiving party’s income, but that the bills are still barely being paid (or, worse, if there’s a deficit each month), it may be difficult to get spousal support.  Of course, if the paying spouse is spending $600 a month on “groceries” for one person, the judge would notice and suggest reallocating parts of the budget to different places.  Still, it’s a matter of looking at that income and expense sheet, determining how much money is there, and whether, after all the needs are met, there is money left over to pay support.  Obviously, that means that there should probably be a pretty big disparity in income.

If you can’t demonstrate need and ability to pay, the analysis ends here, and spousal support will not be awarded.  If you can demonstrate need and ability to pay, you can move on to the second part of the test.

Next, you have to take a look at the statutory factors.  If you’ve hired an attorney to represent you in your case, your attorney will work with you to come up with an argument regarding why you deserve to receive spousal support (or, alternatively, why the factors do not support your spouse’s claim for spousal support).  Depending on whether your divorce is being litigated or negotiated, your attorney may present it differently.  If your case is litigated, your attorney will present your case to the court.  If your case is negotiated, on the other hand, your attorney will argue your case with your husband’s attorney, with the goal of ultimately reaching an agreement.  Either way, the factors matter—and certainly affect your entitlement to receive support.

The factors come from Virginia Code Section 20-107.1.  You can view the statute in its entirety by clicking here, or just read the factors here:

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.

It’s fairly easy to use the factors to create an argument for why you should receive support.  Likewise, you can probably use them just as easily to come up with an argument designed to defeat your spouse’s request for spousal support.

Just like you had to satisfy need and ability to pay before you could consider the statutory factors, you have to be able to make a satisfactory statutory argument before you can go on to the third part of the test.  Of course, the kind of argument that works in negotiation may not be the same as one that wins in the courtroom, so there’s a little more wiggle room here.  The best thing you can do, if you’re wondering whether you have a strong enough statutory argument for spousal support, is talk to an attorney.

The third prong, the length of the marriage, has two main goals: first, to determine whether you qualify to receive support at all, and, second, to determine the length of an appropriate spousal support award, if you qualify at all.

Next, you have to look at the length of the marriage.  Now, before I go too far into the details, I want to say something to you very clearly: this is not law.  A couple years ago, the Virginia legislature considered a potential law that would make the length of marriage a determinant affecting how long a person could receive spousal support, but that law did not pass.  Still, most judges and lawyers that have been practicing for awhile use the essence of that proposed law as a guideline for determining the length of an appropriate spousal support award, so it matters.  That’s why we discuss it.  Even so, though, you should keep in mind that these guidelines are just that—guidelines.  They’re not law, so that means that there’s a lot more flexibility there.  If you don’t make one of the classifications by a couple of years, you can use an argument augmented by one (or more) of the statutory factors to help push yourself up into the next category.  Be creative, and talk with you attorney about a creative solution that addresses your unique situation.

The general presumption is that if you’ve been married between 1 and 5 years that you do not qualify to receive spousal support.  If you’ve been married between 6 and 18 years, you qualify to receive spousal support for half the length of the marriage (of course, assuming that you meet the other criteria, too).  If you’ve been married 19 or more years, you qualify to receive permanent spousal support.

I’ve seen things that deviate from these guidelines, so don’t worry if you don’t qualify to receive spousal support based on these numbers, or don’t qualify to receive spousal support for as long as you’d like.  On the other hand, don’t assume that you’re absolutely, positively going to get half the length of the marriage or permanent support just because these guidelines say so; these guidelines are just a starting point that attorneys and judges use to inform their decision making.  Lots of things can happen!

This should give you at least a rough idea of what you might expect to receive.  If you’ve committed adultery, though, your spousal support award is up in the air.

    How much spousal support will I receive?

It’s really hard to say how much spousal support you’ll receive, because spousal support isn’t calculated like child support.  It’s not based on a specific, quantifiable formula—at least, not in Hampton Roads.

There ARE formulas that are applied in other places—there’s a Fairfax guideline, for example, but there’s nothing that we have to follow in Hampton Roads.  Some judges use the Fairfax guidelines, at least for an example, but they certainly don’t have to, so it can be hard to know ahead of time how much support to expect.

    What types of spousal support are available?

In most cases, spousal support is a payment that is received monthly for a specific period of time.  This is called defined duration support.

Permanent support is paid monthly, but doesn’t have a definitive end date.  Permanent support is received until (1) the recipient spouse dies (you can keep collecting spousal support from the estate of the paying spouse, but you can’t continue to receive support after your death, or reallocate your support so that someone else receives it in your stead after you die), (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.

You can also get lump sum support, which is received all at once, or rehabilitative support, which is usually received for a specific period of time and earmarked for a specific purpose (like, to help you go back to school).

For more information about types of spousal support, it’s a great idea to talk to an attorney.

    Is my award of spousal support modifiable?

Spousal support can be awarded in two ways: from the judge, or by agreement between the parties.  Depending on which way your support is awarded, your spousal support award may or may not be modifiable.

Generally speaking, spousal support reached by agreement is not modifiable (unless, of course, the agreement says that it is modifiable).  Spousal support awarded by the judge, on the other hand, is modifiable.

If you need more information about spousal support, or wonder how it might be applied in yor case, give our office a call at (757) 785-9761.