Will I get Virginia spousal support – and, if so, how much?

Posted on Jun 28, 2024 by Katie Carter


Some things are easier to determine than others when it comes to resolving your divorce case and, unfortunately, spousal support is one of the trickier areas.  Not only has the landscape changed dramatically in recent years – even in just the thirteen years I’ve been practicing, as of the date of this writing – but it’s dependent on a lot of other factors.

When it comes to, say, real estate and division of the retirement, there are easy answers.  Not so when it comes to spousal support.

Things have changed a lot.  For example, spousal support is no longer tax deductible to the person paying it or taxable for the person who is receiving it.  On the surface, this sounds like a good change – money you get that you aren’t taxed on – but it makes getting spousal support in the first place, which already assumes that we have both a higher earning spouse and a lower earning spouse, even more difficult.  Now that the one remaining ‘benefit’ to paying spousal support has been removed, a potential payor spouse – the higher earning spouse – has less incentive to settle and agree to pay spousal support.  And, keep in mind – because of his status as the higher earner, he has more ability to pay lawyers and generally run down the clock as it relates to your ability to pay for your own lawyer.

In addition, most states have entertained or even passed laws (or had judicial opinions established) that allow spousal support to be modified more easily than in years prior.  Nowadays, spousal support rarely extends beyond retirement age; the prevailing thought seems to be that, at that point, retirement earnings take over.  (But never mind that women, on the whole, contribute less and contribute later to retirement, and a particular woman may not be entitled to a significant portion of her ex’s retirement, depending on the length of marriage and other factors.)

There’s not even an easy way to determine how MUCH support you might receive.  In Virginia, we only apply a formula to pendente lite (temporary) orders of support where the combined monthly income is less than $10,000.  In cases where combined monthly income is more than $10,000, or for permanent awards of support (not to suggest that this is an indefinite period during which support would be ordered, but rather a ‘final’ order as it relates to spousal support), there is no binding formula.  It’s not like child support, where we can just run a guideline calculation.

That’s not to say we don’t have a formula; we do.  We have a couple of them.  But they just aren’t binding on the courts so, for negotiation and litigation purposes, we can really only use the formula as a frame of reference.  The judge can – and will – look at all sorts of other factors when it comes to determining (1) whether to order support at all, (2) if so, how much, and, then, (3), if so, for how long.  It’s all fairly complicated.

That being said, though, there are some general guidelines.  For one thing, you have to demonstrate a need and he has to have an ability to pay.  Basically, that means there must be a disparity in income.  In most cases, this amounts to a pretty significant disparity – often as much as 50% or more – before support is awarded at all.

Not only that, but spousal support is often NOT awarded indefinitely, even in long term marriages.  For our purposes, I’d define a ‘long term’ marriage as one that lasts 20 or more years.  Of course, in a 20+ year marriage, the parties may be older and, as a result, closer to retirement age, anyway, so there’s often not as long of a period to even receive spousal support.  It’s possible to get ‘indefinite’ support, but it would likely be modifiable in retirement anyway.  Not only that, but you may be subject to analysis by an employment expert, who would look at whether you could go back to work (or scale up your work) and, if so, how much you could reasonably expect to earn, all in an attempt to impute income to you.  (This is true regardless of whether you actually decide to go back to – or scale up – your work.)

In other marriages, though – marriages that last 19 years or less – we often see support awarded for half the length of the marriage or less.  That’s not a guarantee, of course; it’s just a benchmark that we use.  Though it’s most common to see spousal support awards of a certain number of dollars per month for a certain period of time, it’s also possible to have spousal support payable in a lump sum or spousal support that tapers off over the course of the coming years.

For super short term marriages – 6-7 years or less – it’s possible that no support would be awarded, but I’ve seen it awarded plenty.  It’ll depend a lot on your circumstances, but it probably won’t be a super long term award, because you weren’t married long enough to completely depend on him.  Even if you’d been out of the workforce for a short period, you’d have more success (and therefore more earning potential) on re-entering than someone older might have, which is something the judge would certainly consider.

The court can’t force you to go back to work, but the court can examine, in detail, what your earning potential looks like through an employment expert, like we mentioned earlier.  The same applies to him, though; he’s not going to be able to quit his lucrative career and work at Wawa in order to pay you less (or no) support.  The court would impute income to him in that scenario as well, so it’s technically designed to be a mutually protective provision.

Keep in mind, too, that spousal support – under Virginia law – terminates if either party dies, or if you – the recipient spouse – remarries or cohabitates in a relationship analogous to marriage for a period of one year or more.  So, it’s also fairly restrictive in terms of the choices you can make after your marriage is dissolved, too.

One thing is certain: nothing is certain when it comes to spousal support.  But what can you do?  I recommend, regardless of your circumstances, that you at least consult with an attorney and have the guideline support calculations drawn up, so that you can see what you might be entitled to receive in your divorce.  Everything at this point is up for negotiation, including spousal support, but it will at least help you begin to see the trees for the forest.  You need to be able to create – and visualize – what your post-divorce life will look like, and a lot of that comes from the financial security you’re able to establish in your divorce.

For more information about spousal support, to request a copy of our divorce book for Virginia women, or to register to attend an upcoming divorce seminar, give our office a call at 757-425-5200.