I get it. Spousal support is complicated. And not just that, but keeping everything else in mind that will matter during the course of your divorce is complicated. It’s scary, when you don’t know what’s going to happen to you or your children, and your finances are sort of tenuous at best.
If you’ve been either a stay at home mom, or a wife who has seriously cut back her employment for the benefit of the family, you’re not alone. And, maybe even more importantly, you’re not without value.
Spousal support is rooted in the idea that a person shouldn’t be financially crippled forever because of the decisions that two people made during a marriage simply because one partner earns less than the other. You didn’t decide on your own to have children and stay at home; you and your husband made that decision on purpose in an effort to provide your children with the background and support they needed to be successful at life. If you worked less so that you could be there to support the family, that was a mutual decision made out of a desire to do what was best for your husband, your children, and your home. Right? You didn’t do this alone!
If you’re thinking, “Well, he’s SAYING it was all my decision now!” you’re not alone in that, either. I can’t tell you how many husbands try to pull the “SHE decided to stay at home, I wanted her to get a job!” card now that the marriage is on the rocks and divorce is on the table. That argument generally isn’t successful. After all, he stayed in the marriage (sometimes, for decades!) after a decision for the wife to stay at home was reached. Surely, the court reasons, if he had an issue with it, he wouldn’t have just sat by for five, ten, or even twenty years just letting it happen?
Spousal support isn’t easy, though. It’s not at all like child support, which is just numbers plugged into a formula. Child support is really pretty simple. Spousal support…well, not so much. It’s fairly complicated, which is why I’ve written this three article on everything you need to know about spousal support.
How is spousal support calculated in Virginia?
That’s a really good question! It’s also hard to answer. Child support has one guideline that is applied regardless of where in Virginia you’re from. Spousal support, on the other hand, varies widely across the state.
In the Hampton Roads area, we do not have a formula that is binding on our courts. Other areas – like Harrisonburg and Fairfax – do, and we often use those formulas to give us a rough idea of what the court might award. In my experience, the courts use those formulas, too – particularly the Fairfax guideline – but it isn’t guaranteed that you’ll receive support according to this formula. It’s just a suggestion, and one that the court can (and sometimes does) deviate wildly from.
Usually, what I do in a spousal support case, is calculate the guidelines first according to the Fairfax system. Then, I negotiate from there, to the extent that I can. Obviously, we start with a proposal that’s higher than what Fairfax provides, and we negotiate downwards from there are necessary. Usually we have an end goal (or at least a range) in mind.
If we go to court, we present evidence.
What factors does the court look at when deciding whether to order spousal support?
Need versus Ability to Pay
Lots of them! First of all, the court looks at need and ability to pay. You have to demonstrate that you have a need, and that he has an ability to pay.
Translation: He must earn significantly more than you.
How much more? It’s hard to say, since we’re not bound by any particular guideline calculation, but usually somewhere in the neighborhood of 30-40% more.
It’s easy to demonstrate that you have a need, but you’ve also got to be able to show that level of income disparity in order for the court to be willing to award you support. (And the same – if you’re hoping that your husband will just agree to it, you’d better believe his attorney is going to be looking at whether she thinks the court would award it.)
The statutory factors
There’s also the law to consider. In the Commonwealth of Virginia, we have factors that the court has to consider, so they do impact negotiations where spousal support is concerned as well. In case you haven’t read them yet, here 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.
The duration of marriage
So, obviously, the length of your marriage matters, too! Generally speaking, the longer you’ve been married, the longer an award of spousal support may be appropriate in your case. Of course, a long term marriage doesn’t guarantee support; the other factors still have to support an award of support. But the longer a marriage the better, in terms of the duration of an award of spousal support.
For short or medium length marriages, we see support running from between half the length of the marriage to the length of the marriage, depending on how the factors and other facets of the case apply.
In longer marriages, permanent support is a possibility. Keep in mind, though, that permanent support isn’t permanent, like, forever and ever, do whatever you want. No, there are terminating factors that apply, and, you should also be aware, they apply to you (as the recipient of the support) more than they’ll apply to him (as the payer of support). Spousal support terminates (1) upon the death of either party (which is why we often ask that a life insurance policy be maintained in the spouse’s name for so long as there’s a spousal support obligation), (2) the remarriage of the recipient spouse, or (2) the cohabitation of the recipient spouse in a relationship analogous to marriage for a period of one year or more. So, yeah, there’s strings attached.
How does adultery impact spousal support?
Technically, under the law, if you’ve committed adultery, you don’t qualify for spousal support. Of course, that’s assuming that support would’ve been awarded anyway; for that part of the analysis, you’d have to review the factors we discussed above.
In order to override this, if you’ve committed adultery, you’d have to show that manifest injustice would result if the court denied you support – a rocky and difficult road to hoe, for sure. Can you do it? It’s possible, but it’d be time consuming and expensive.
Remember, too.. If your case is a spousal support case, you’re kind of already at a disadvantage, because it means automatically that your husband earns more. That means he has more money to spend on lawyers than you do, and, if the case ends up being contentious, you’ll need to plan carefully and strategically to avoid messy money pits – like manifest injustice arguments.
A better idea is to either (1) refrain from having an affair, at least until there’s an agreement in place that governs the terms of your divorce, or (2) if it’s already too late, never mention your affair to anybody, ever, under any circumstances, and hope to goodness he doesn’t find out about it. Not even your mother or your sister or your therapist. No one. Seriously. Keep your mouth shut.
Voluntary Underemployment and Imputation of Income
Can the court force you to go back to work? Well, when you look at a spousal support case, the first question is always this: What does the agreement (or court order) say? The language there will govern a lot of these types of questions, and can give really good insight into your case.
So, if what I’m about to say contradicts anything in your agreement or court order, you’re going to have to follow your agreement or court order. Keep in mind that I’m speaking in generalities here, and not to anyone’s particular circumstances.
The court can’t MAKE you go back to work. You’re an adult, you make your own decisions, and the court can’t infringe on your liberty that way.
That said, though, the court CAN impute income to you. That means, essentially, making you responsible for income at a certain level – regardless of whether or not you actually go out and earn it.
We see this happening more and more often these days, and especially in cases where there’s a possibility of permanent support. The other side will often hire an expert who can assess your employability, what you might be able to earn, and even list for the court the kind of jobs you would be capable, based on your age, physical condition, experience, education, training, etc., of doing. The judge then can infer from that information that you’re capable of earning at a certain level, and include that level of income in the support calculation. Whether you actually do it or not…well, that’s up to you.
Imputation can work in reverse, too. If, say, your husband is threatening that he’ll quit his job so that he doesn’t have to pay you support… well, the court won’t like that. If he quits, or if he suddenly accepts a job that pays less than what he has been earning, you can make an argument for voluntary underemployment, and the court can also impute income to him. (Though, honestly, I’ve never had a case where a husband actually DID quit, though many have threatened.)
Spousal Support by Court Order versus Spousal Support by Agreement
Can spousal support be modified? Yes! The law on that point recently changed, and it’s modifiable regardless of whether spousal support is ordered by the court or agreed to in an agreement.
It’s modifiable both upwards and downwards, based on a material change in circumstances. Is this good or bad? Well, it doesn’t matter, because it is, at this point; but, really, I’d have to say that it depends on the case. If he gets a raise, it’s good. If it retires too quickly, it could be bad – though, then, of course, you’d probably get your portion of the retirement (assuming, of course, that your marriage overlapped the period of time during which he was employed and earning that retirement).
Is spousal support taxable?
The million dollar question. Until December 31, 2018, spousal support is taxable to the person receiving it, and tax deductible to the person paying it. After January 1, 2019, unless and until the law changes, spousal support is neither taxable nor tax deductible.
At first blush, that might sound like good news. It’s probably not, though. After all, spousal support is a sort of hard sell, even in the best cases. Tax deductibility was the one advantage that paying spousal support had going for it. Without the tax deductibility portion, husbands will probably be considerably less willing to pay support.
I think this will likely result in more and more people being unwilling to agree on the issue of spousal support. Especially since, as I mentioned before, the husband is the primary wage earner in a spousal support case (at least, one like I’m discussing here), so he can outspend his wife in attorney’s fees. It’s kind of a scary proposition, especially for the lesser earning spouse who is depending on receiving spousal support.
What will happen? It’s hard to say. The law hasn’t even taken effect yet because it’s not January 1st, so I haven’t seen any real life cases impacted by this new legislation.
Only time will tell!
But wait! There’s more! (I’ve always wanted to say that!) On Friday, we’ll talk more about spousal support. (There’s more?!) There’s still more we need to cover, including exactly how a spousal support award can be entered. Stay tuned for more!
But HOW does that happen, particularly in litigated cases?
In an agreement case, it’s easy. You agree to some terms (though, of course, agreeing isn’t always easy in and of itself), sign the agreement, and you’re pretty much done.
If you go to court, though, it’s a different story, and you’ve got a couple of options. If you’re thinking about things strategically, and trying to figure out how to get what you want based on the choices you make at the outset – well, I’ve got to admit, I like that about you. I think it’s smart.
It’s definitely better to figure out ahead of time what your goals are, and then reverse engineer the path you hope will get you there. By articulating your goals, it’s often much, much easier to make the decision about how, procedurally, to move your case forward.
So, obviously, your goal is spousal support. But if you can’t get an agreement in place (which is often Plan A), you’ve got to look at your other options. There’s no other way around it, though: your other options involve court.
How to get spousal support ordered in court
Is spousal support is the game, you’ve got a couple different courts you can petition for relief. Let’s discuss.
If you’re also getting divorced, spousal support is often determined as part of a divorce action.
Often, in a contested divorce, the first step, after you file, is to schedule a pendente lite hearing. Pendente lite is Latin for “while the litigation is pending”, and it’s an opportunity to get temporary support (both child and spousal), among other things, ordered.
It’s temporary support – just designed to last between the time it’s ordered and until either (1) the parties reach an agreement, or (2) the court enters a permanent order. But, still, it’s often a hearing that happens pretty quickly after filing, and one that will at least get something in place to help pay the bills in the meantime. That can be invaluable, especially if he has cut you off from access to the marital money, or refuses to add any extra to allow yout o support yourself or the children.
In the meantime, while the rest of the case is unfolding, you’ll at least have some kind of temporary support, and that will give you the freedom to think about what a reasonable result will look like in the rest of your case. Once you’ve got the basic necessities covered, you don’t have to feel so frantic. That can give you time to talk to a mortgage broker, to a financial advisor, or anyone else you need in order to make a plan for your life moving forward.
Pendente lite doesn’t change the rest of the divorce. We still have the ability to either negotiate an award of spousal support, or, if necessary, to litigate it. Your pendente lite award will stay in place until those more permanent awards of support take over. (Note that I don’t mean permanent as in “forever and ever,” I just mean a permanent and final adjudication or settlement of the issue of spousal support – whether it’s awarded for a period of years or whether it’s awarded indefinitely.)
If it’s litigated, we’ll want to make an argument, like we discussed the other day, of (1) your need and his ability to pay, (2) the statutory factors for support (see the Virginia Woman’s Guide to Spousal Support Part One), and (3) the duration of your marriage.
If you’re (1) trying to get spousal support in place but are NOT yet moving your divorce forward, or (2) you’re modifying an existing order of spousal support, you may find yourself in juvenile court.
It comes as a surprise to some that you don’t have to actually go through with a divorce (or, at least, begin the process of divorce) in order to get support in place. You can file through the juvenile court at any point.
There are some advantages and disadvantages to taking this route, though, and you should be aware of them.
Advantages to Filing in Juvenile Court
Of the courts, juvenile court is the easiest and most user friendly. It’s much more possible, if you choose, to file in juvenile court without the assistance of counsel. (Though, honestly, I never recommend it.)
You can ask for your support to be awarded back to the date that you filed. Even though it’ll take a long time to get a court date (more on this in the “disadvantages” section), your petition is good from the date that you file it, not the date that it’s actually heard.
If you get a bad result in juvenile court, it’s appealable to circuit court. You’ll get a “de novo” hearing, which means brand new. None of the information from the juvenile court will follow you up to circuit court – though, by that time, you almost certainly need an attorney. If you want to appeal a final order in juvenile court, you’ll only have a few days to do so, so make sure you check with your court to make sure of the deadlines there.
You can handle a couple of other issues at the same time as spousal support, if applicable. Specifically, you can also petition for custody, visitation, and child support.
Disadvantages to Filing in Juvenile Court
Like I mentioned before, it can take a long time to get a court date. Most of the courts in our area are operating with fewer judges than necessary, and their dockets are super backed up. In Chesapeake, for example, it can take up to three months for the court to even process your petitions. Another three months before they’ll set an initial appearance. And, if your case is contested, you’ll go in for your initial appearance only to find that the court will set a trial date, which is likely to be another three to six months out, depending on how backed up the court is.
If your husband doesn’t want to handle all these issues separately in the juvenile court, he doesn’t have to. If he files for divorce in the circuit court and sets a pendente lite hearing within 21 days, he can divest the juvenile court of jurisdiction – meaning that the case will be physically removed from the juvenile court and handed to the circuit court. It…kind of ups the ante. There’s nothing you (or I) can do to stop him from doing this.
If you get a bad result and don’t note your appeal within an appropriate period of time, you lose the right to do so. The clerks can’t (and generally won’t) help you make sure you’ve got the right documents, or advise you regarding next steps. They legally can’t give legal advice (because they aren’t attorneys and aren’t qualified to do so), either.
He can appeal, too! (A good result for you, remember, is a bad result for him, and he has all of the same options available to him that you do.) That would make your case take longer and cost more, especially if you’re represented by counsel. (And, if he appeals to circuit court, you definitely need counsel!)
Which option should I choose?
It depends on your goals. If you’re ready to move your divorce forward, circuit court is the better option. If you’re hoping to stay married for awhile longer (this is usually because of health insurance or some other benefit that you’re receiving as a benefit of your marriage), then maybe juvenile court is the better choice.
It’s a good idea to talk to an attorney about your options so that you can weigh your individual advantages and disadvantages and come up with the best course of action for you. None of us have a crystal ball, and we’re all doing the best we can with the information that we’ve got. We may be making a decision based on incomplete information, but at least we’re doing the best we can to think critically, strategize, and make the best decisions possible under the circumstances.
For more information, or to schedule a confidential consultation with one of our licensed and experienced Virginia spousal support attorneys, give our office a call at 757-703-1386.