Virginia Spousal Support Changes 2018-2019

Posted on Oct 26, 2018 by Katie Carter

Virginia Spousal Support Changes 2018-2019

If you’re separating (or already separated), headed towards divorce, and hoping that your divorce settlement or decree will include an award of spousal support, there’s a lot that you should know. The law is in a state of flux right now, and so, so, so much is changing. Things that divorce attorneys like me treated as an established fact are changing – and changing so drastically, so quickly! – that you’ll definitely want to be aware of what’s happening now.

Spousal support has always been a wishy washy thing. It’s not like child support. There’s not a formula that’s binding in our courts. The result has always been that spousal support awards vary dramatically across different cases, with no two results looking exactly the same. Of course, no two cases are the same, either, but you catch my drift. There is a lot of variation when it comes to spousal support.

That comes, partially, from how spousal support is awarded. When we’re looking at whether or not spousal support would be awarded in a case, for how long, and, if so, in what amount, we’re looking at a lot of different puzzle pieces. We’re looking at (1) need and ability to pay, (2) the statutory factors, and (3) the duration of marriage. I’m not here to talk about all of that today, though it’s still relevant when we consider spousal support awards, so you might want to read a couple of other articles I’ve written to understand how these things apply in spousal support cases. Try this one, and this one, for starters.

I’m here today to talk about the changes to the law, both under the July 1, 2018 amendments, and also the revisions to tax law related to awards of spousal support effective on January 1, 2019.

July 1, 2018 Change to Spousal Support

This is a biggie. It used to be that, when you got spousal support by agreement, it wasn’t modifiable unless the agreement specifically said that it was. A court order, on the other hand, was modifiable, unless the judge specifically decreed that it wasn’t modifiable.

Now, spousal support is modifiable regardless of whether it was entered into by agreement or ordered by the judge.

Is that bad? Well, not necessarily – if it’s modifiable, it could go up. But it would certainly go down at some point – like the point at which he retires.

I’m a bird in the hand kind of girl; I don’t like to think about the two in the bush. I prefer an award of spousal support that’s not modifiable, just so that my clients can wrap their heads around what it means, and budget accordingly. It’s stressful to think that things can change, with little or no notice to you, and without you having done anything wrong.

I’m not trying to be all gloom and doom on you; just because it is modifiable doesn’t mean either that it automatically will be or, if so, that it’ll be adjusted downward. And, if it’s an award of support for a specific duration, as many are, it’s probably not going to be modified, the term of years will run and it’ll terminate on its own.

This doesn’t impact, of course, awards of spousal support that were agreed to prior to July 1st. If your agreement was signed before that law went into effect, your award is still not modifiable. So, good for you!

Changes to Taxes for Spousal Support Awards After January 1, 2019

Beginning in January, there are even bigger changes afoot. After January 1, awards of spousal support are not taxable to the party receiving them nor deductible to the party paying them.

If you just listen to the words, you might think, “Woohoo! I could get spousal support AND not pay taxes on it now!”

That’s true – if you receive an award of support after January 1, you won’t have to pay taxes on it, so you’ll keep more of your spousal support award. That part is good.

…But, now, what incentive is there for a husband to pay support at all? If you thought they dug in their heels about support before, imagine what will happen now! Probably no husband after January 1 will be willing to agree to support without litigation. (After all, there’s literally 0 advantage to them to agree, so they might take their chances that a judge would award less or none at all than they’d agree to – and, at any rate, they can both drag it out, and make it cost more in the meantime!)

Since you’re asking for spousal support, it’s safe to assume that you’re the lesser earning spouse, right? So you have less to spend on attorney’s fees, and he can really drag it out and drive your costs up in the meantime, as you try to litigate over your award of spousal support.

There are definitely some really unpleasant side effects, and a whole lot of unanswered questions, because, at this point, we just don’t know what’ll happen or how courts will come down on some of the undecided issues.

For more information, to talk in more detail about your unique situation, or to schedule a consultation with one of our licensed and experienced spousal support attorneys, give our office a call at 757-425-5200.