Will I Get Spousal Support?

Posted on Aug 29, 2014 by Katie Carter

“Will I get spousal support?” is a question that is critical to a lot of divorcing women. After all, most of us, during our marriage, prioritize our other family members over ourselves, and our careers and other money-making prospects suffer as a result.

It’s a situation I’ve seen again and again, especially since the costs of childcare grow higher and higher with each passing year: a couple has a child, or two or three, and eventually decide that it’s not worth it for one spouse to work for essentially enough money to cover the costs of daycare. They decide that they’d rather raise their children themselves, anyway, so why not have one spouse stay at home? That spouse quits their job, and, along with it, gives up a salary, access to health and other job related benefits independent of her spouse, opportunity to gain experience or learn new skills, and even, in most cases, stops contributing to a 401(k) or other retirement account. In some cases, professional certificates or other endorsements necessary to stay competitive in her chosen field lapse as well over time.

Whether you stay at home or maintain your professional career through motherhood, it’s a really difficult position to be in, and I’m not endorsing the either the decision to stay at work or become a full time mom. Ultimately, the decision about who you want to be personally and professionally, as well as the decisions you make with regard to the care and upbringing of your children, is an intensely personal decision that is yours and yours alone.

If things don’t work out between you and your husband, though, you may find that supporting a household without a second income is a little more difficult (or darn near impossible) than you thought it might be. Most stay at home moms (or, even, moms who go back to work but cut back their hours for the sake of their families) need a little extra support to keep on paying the rent or the mortgage and make sure the lights stay on.

Spousal support, in a lot of ways, is very different from child support. If you and your husband (or child’s father) are no longer together, and you have a child under the age of 18, child support will be awarded. How much child support is awarded is based on a number of factors, including the kind of custody you have (whether shared, split, or primary physical), how much money you make, and how much money you spend on child care and health insurance for the children. It’s gender neutral, so it could be awarded to you, if you have the kids more of the time, or it could be awarded to him. But, regardless, it’s automatic, and it will be awarded based on the formula no matter what.

Spousal support is not based on a formula, nor are there mandatory guidelines that any judge in our area (or any attorney in our area) has to follow to determine whether and how much spousal support you might qualify to receive. So, how are you supposed to know whether you’ll get support or even how much? Well, in Virginia, it’s based on a pretty complicated web of analysis. I’ll explain to you how judges and attorneys look at spousal support, and that should help give you a better idea of whether or not you might be able to ask for spousal support. To figure out exactly how much you might receive, you’ll probably want to set up an appointment with a Virginia attorney. The attorney will help you figure out a range, and you can go from there.

But, first things first:

Is it possible that I’ll receive Virginia spousal support?

To figure out whether you would qualify to receive spousal support, we have to look at three main factors: (1) need and ability to pay, (2) the factors from the statute, and (3) the length of your marriage. At each point in the analysis, you have to ask yourself whether you’ve survived that step. Before you can move on to the next step, you have to satisfy the court that you qualify to receive support under that particular prong of the test. If you fail at any level, there’s no need to move on to more in depth levels of analysis.

Need versus ability to pay

The first thing the court will consider is whether you have a need (that’s an easy one) and whether he has an ability to pay (a little bit tougher).

You have a need if you are going to have a hard time making it financially without some sort of contribution from your husband. If you’re struggling to pay the mortgage or make ends meet in any other way, it’s pretty easy to establish that you have a need.

Whether he has an ability to pay, on the other hand, is a little trickier. If you and your husband make a similar amount of money, or if you actually make more money (even though it feels like less because you’re the primary caregiver for the children), you won’t qualify to receive spousal support. Your husband must be paid more than you, but it’s difficult to determine exactly how much more he needs to make in order for you to qualify.

If he doesn’t have the ability to survive on his own (within modest means) and pay support, he may not have to pay it. Of course, that doesn’t mean that he can argue that he has a right to survive on Dom Perignon and caviar at your expense, but it does mean that the court is going to look into what it really costs him to pay his bills, too.

The statutory factors

If you can establish that you have a need and he has an ability to pay, the court will then look at the statutory factors. These are usually pretty easy; you can use these factors to support your argument for support in any number of ways.

This is where, if you decided to stay at home or cut back your career for the sake of your family, you’ll really have a chance to discuss your sacrifices and ask for some compensation.

The statutory factors 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, as are necessary to consider the equities between the parties.

Length of Marriage

The length of your marriage also has something to do with how much spousal support you’ll receive, even though it isn’t actually a law. Several years ago, a bill was presented to the Virginia legislature that proposed making it a law, but it didn’t pass. Still, even though it’s not a law, there is a general feeling that the length of marriage matters in a spousal support award, and it’s something that almost every local judge and attorney is aware of.

If your marriage is borderline between one length of time and the next, that doesn’t automatically mean you’ll fall into one category or the other. In fact, there’s really no guarantee at all. Very long term marriages sometimes don’t even warrant an award of spousal support, so the length of marriage alone is only one factor out of many. So, keep in mind that, even though I’m telling you this, it’s not the law, and it’s not set in stone, and what happens to you may, in fact, be very, very different.

The way the law was proposed, short term marriages from 1-5 or so years would not qualify for any spousal support at all. Mid length marriages from between 6 to 19 years would receive support for half the length of the marriage. Long term marriages, on the other hand, could qualify to receive permanent support. Of course, permanent spousal support doesn’t mean “permanent,” exactly. It means that you could receive support, if you qualify, until either of you dies, until you (assuming you’re the recipient spouse) remarry, or until you (assuming, again, that you’re the recipient spouse) cohabitates with someone in a relationship analogous to marriage for a period of one year or more.

Again, this length of marriage stuff is not absolute. It’s something that matters, and something that the court would (and your attorney will also) consider when telling you what to expect or counseling you on your options. It’s definitely worth keeping in mind.

Going to court versus negotiating

The factors that we’ve discussed, up until this point, are the factors that the judge would consider if it was up to him (or her) to determine whether or not you’d receive spousal support. But that’s not the only way you can get an award of spousal support.

These days, a lot of divorces are negotiated, and the parties don’t even set foot in the courtroom until the final uncontested divorce hearing, if at all. (Some jurisdictions don’t even make you appear for that!) If your divorce is negotiated, your spousal support award is going to be decided between you, your husband, and your attorneys, and your support award can be whatever you can get your hubby to agree to pay you. There’s tons of flexibility here, which is both harder and easier than having to face a judge in court.

It’s harder because you may face some resistance from your husband, and he may be willing to put extra pressure on you because he thinks that you won’t spend the extra time or money to have your attorney prepare the issue for court.

It’s easier, because you don’t have to rely on a pre-determined range that the judge uses. You are free to negotiate whatever you want with your husband and, if he agrees, that’s what your spousal support award will be.

Is my support award modifiable?

Another major advantage of negotiating your spousal support award is that any support award that’s made by agreement is not modifiable. That means that your husband can’t later go to court and ask the judge to lower your award of spousal support.

In a case that was decided by the judge, on the other hand, the award of spousal support is modifiable.

Types of Spousal Support

Spousal support doesn’t always look exactly the same. It can come in a number of different forms, depending on your needs and creativity. Normally, if spousal support is decided by a judge, it will be awarded for a certain period of time for a certain amount of money each month. That’s a possibility, of course, and it’s probably the most common way we see spousal support handled. Still, you should keep in mind that you can stack your award of spousal support any way you’d like, especially if you’re negotiating it in an agreement.

These days, rehabilitative support is really popular. This is spousal support, usually designed to be received for a short period of time, in an amount calculated to help the lesser earning spouse get back on her feet. Sometimes, the money covers the cost of tuition and books at a local community college, technical school, or four year university, or it’s designed to help the lesser earning spouse earn whatever professional qualifications she’ll need to secure a job in her field. However it’s stacked, rehabilitative support is designed to help give both spouses the opportunity to earn enough to support themselves on their own eventually.

You can also ask for lump sum support, which would be paid out all at once. This is pretty rare, most of the time (because, really, who has the money to just pay it out all at once?), but it does happen. The major advantage of lump sum support, versus permanent or other long term support, is that it’s not conditional. If he dies or you remarry or want to cohabitate with someone else, your support won’t be terminated or taken back. On the downside, usually the amount of support you’ll receive is less than what you would have received if you had taken your payout over a longer period of time (why else would he agree to pay all at once, unless it gave him some kind of break?).

Periodic support is support that’s paid monthly over a certain period of time. It can be in equal monthly installments, or it can be staggered so that it starts out at a larger amount but gradually tapers off as you become more self sufficient.

We’ve already talked about permanent spousal support, but that’s another option, even though it’s pretty rarely ordered these days.

Will my award of spousal support be enough?

It’s hard to say. I think most people would say that spousal support awards are rarely as generous as they should be, and it’s often hard for women to make a full financial recovery after divorce. Depending on the standard of living to which you have grown accustomed, you may or may not be willing to make all the cuts you’d need to make (or may not even be able to make them) to survive on your spousal support award alone. More and more women are finding that they have to re-enter the work force at some point in order to supplement their spousal support awards. No matter what their age, educational background, or experience, lots of women eventually find that it’s necessary to go back to work.

One of the things we’ve seen happen a lot in recent years is that the other side will hire an “employment expert” who will review the lesser earning spouse’s education, training, and qualifications, and attempt to figure out how much money they might be worth if they entered the workforce. They’ll put together a detailed analysis, and even suggest possible jobs that are suitable for the person in question. Sometimes, the court will accept these things as true, and even credit the lesser earning spouse with the responsibility for obtaining a job at that level. Then, their spousal support award would be less, because they’re responsible for finding a job that allows them to earn the amount that the employment (or vocational) expert said that they could earn. It makes spousal support cases a little trickier.

Of course, no one can FORCE you to go back to work if you don’t want to, but it is possible that the court will make you responsible for the level of income that the vocational expert said you were capable of earning. If you choose not to work, you won’t receive any kind of credit for that.

It’s hard to say for sure whether you’ll have to go back to work, but it’s definitely possible.

Could I have to pay him spousal support?

In a word, yes. Everything that we’ve discussed here has been discussed as though you were the lesser earning spouse. If, however, you were the higher wage earner, everything in this piece could be flipped around the opposite way, and you could be required to pay support to him.

If you’re concerned about your award of spousal support, or worried about the possibility of having to pay him support, you should talk to a licensed and experienced Virginia family law attorney right away. Get in touch with our office by calling (757) 425-5200, and we’ll help you figure out your rights and entitlements under Virginia law.