It’s scary to be the lesser earning spouse, even if you know full well that the reason you’ve earned less is because the two of you made decisions throughout the marriage that were designed to support the household and the family.
In a lot of ways, earning less puts you in a much more difficult position if you and your husband eventually decide to separate or divorce. It doesn’t give you access to the kind of money you need to leave and set up a separate safe space for yourself. That’s not a good feeling. When you’re worried about paying for basic necessities and you’re dependent on your soon to be ex spouse to provide them, its definitely anxiety inducing.
But money is certainly no reason to stay in an unhappy, unsuccessful, or unfulfilling marriage – even if you do need money for shelter, food, and other basic necessities. So what can you do?
Spousal support is designed to help in situations like this. Of course, I’m making some basic assumptions here – essentially, that we meet the basic requirements for an award of spousal support in Virginia. There are three: (1) need and ability to pay (which means that there’s a significant disparity in income, (2) an analysis of the statutory factors that warrants support, and (3) that the duration of marriage is such that it supports an award of support.
When we’re talking about weighing those three factors, we’re determining a couple of things: first, whether an award of spousal support would/could be made; secondly, if so, how much; and third, if so, for how long. There are a LOT of variables involved; no two awards of spousal support are exactly the same.
Temporary spousal support is different than permanent spousal support, though. Often, temporary spousal support is just there to bridge the gap between separation and eventual divorce.
There are two basic ways to get an award of temporary spousal support in place.
1. File in the juvenile court for spousal support.
When you file in the juvenile court, for custody and visitation or for spousal support, it’s not part of a circuit court divorce action. It’s technically what’s called a petition for “separate maintenance’, which is another word for spousal support.
You can file for support in juvenile court, even before divorce is pending. (Though, be warned: it is likely that if you do this, your husband will file for divorce in the circuit court, which will take the case out of juvenile court and put it in circuit court. We call this ‘divesting’ or ‘divestiture’.
The case can’t be pending in both places; since the circuit court is the superior court, a filing there will take the court out of the juvenile court’s hands. This would mean that the case has been formally divested. So, if you were hoping to JUST get spousal support in place and not move the divorce forward just yet, you may find that your husband makes that decision for you. He might not, of course, and it’s your right to file your petition wherever you like, it’s just also important that you be aware that procedurally he has that option and may exercise it.
2. File for divorce, and ask for temporary support at pendente lite.
Just like he can move your case out of juvenile court and into circuit court by divesting, you could just go ahead and file for divorce in circuit court.
It’s a little more expensive to hire an attorney for a divorce-related action, and it’s less likely that you could represent yourself in circuit court than in juvenile court (all reasons you might have been tempted to just file in juvenile court first), but ultimately circuit court is where you’ll need to be to resolve the marriage anyway. And this way, you’re taking steps towards the divorce as well. (Though just because you’ve filed for divorce doesn’t ultimately mean that you have to divorce.)
At pendente lite (which literally means “while the litigation is pending, in Latin), which is typically the first court appearance for a contested divorce case, you can also ask for temporary support.
In either case – whether you pursue separate maintenance in the juvenile court or temporary spousal support at pendente lite in circuit court – it’s a contested hearing.
It’s possible to get spousal support in a separation agreement, too, but then it wouldn’t be technically classified as temporary spousal support. When you get support in a separation agreement or at a final divorce hearing, it’s permanent support – which doesn’t necessarily mean that it’s a permanent award (like, until you die, remarry, or cohabitate), just that it’s not temporary. It could still be a periodic award (meaning, for a defined duration, like 5 years). This is also an option worth considering, especially if your husband is relatively agreeable. That way, you could move the divorce forward more quickly, easily, and inexpensively, without the need to appear in court as adversaries.
So, really, that’s three options for getting support in place, although technically only the first two are “temporary” awards.
If you need support to survive, it’s best to talk to an attorney before the situation gets really dire. Spousal support cases are inherently tricky – because the higher wage earning spouse has the ability to outspend the lesser earning spouse. Not only that, but since the laws changed and spousal support is no longer taxable to the person receiving it or tax deductible to the person paying it, it makes getting support awards in place even trickier than they would otherwise be. After all, with no tax deductibility, what incentive does he have to agree and make it easy on you? Especially since he can bury you in legal fees?
It’s not gloom and doom, of course, but it does necessitate some careful strategizing on your part, and the sooner you start working with someone familiar with the ins and outs of Virginia spousal support cases, the better.
For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.