Women’s Entitlements During and After Virginia Divorce

Posted on Aug 8, 2022 by Katie Carter

Historically, divorce has been a bit of taboo. Henry VIII’s legacy notwithstanding, even the British royal family has had its own issues with its various brushes with divorce. In fact, Princess Margaret was the first to divorce in the immediate royal family – in 1978 – since Henry VIII, when he divorced Anne of Cleves in 1540. (He did have two subsequent wives, Katherine Howard and Katherine Parr, but he beheaded the former and predeceased the latter.)
When you look at it like that, especially in context with our sensibilities today, it seems crazy. Of course, there were plenty of common people who likely divorced during that time – but, for women, it was always a challenging prospect.

Even in the United States, and even in the 1900s, it has been challenging. Even as late as the 1970s, American women earned the right to have credit cards and mortgages in their own name, which seems – to my mind – a staggering concept.

Wealth-building is difficult if you can’t buy a home or take out a line of credit in your own name. When you can’t build wealth, you’re more or less trapped in a marriage.

There are still challenges today. When child-rearing and child-raising takes away a woman’s prime years, and she only earns 80 cents on the dollar (less still, if she’s a woman of color) compared to a man, well, wealth building is still a major challenge. Studies have shown that the cost of raising children costs women astronomically in terms of their overall retirement savings. Even a modest maternity leave can impact the amount of money that a woman is able to put aside in her retirement accounts, often during very formative years when the woman in question has the most time before her own retirement, especially if she has multiple children.

I’m not here to make a political statement. If anything, as a mother of two young children myself, I’m sympathizing and lamenting along with you. But I do want to point it out, and to remind you that, it’s because of things like this (things over which, frankly, you and I have little control) that you have a responsibility to understand the depth and breadth of your rights and entitlements under the law.

Marriage and entitlement to retirement accounts

All too often, husbands seem to believe that their retirement is ‘theirs’ entirely, a misconception that, unfortunately, their soon to be ex wives seem to share. In reality, though, the law doesn’t look at it this way. He earned his retirement – the marital portion, at least – as a direct result of your support. Whether you worked yourself, worked part time, worked from home, stayed at home, or whatever the case may be, the two of you were a partnership (the same as if you owned a business together) that earned the retirement that you accumulated prior to your separation and eventual divorce.

If you have your own retirement, he has an interest in that, too, of course. (Because, after all, what’s good for the goose is good for the gander, right?) But, as we’ve sort of already touched on, yours may be worth far less, whether because you earned less, physically birthed the children born to the two of you, and/or were able to work less because of your responsibilities in raising those children. It’s not fair or equitable or reasonable, but it is – or at least, can be – the way things are. It’s not necessarily that way in every set of circumstances, but it is something that we commonly see.

It is definitely important to know that you’re entitled to 50% of the marital share of whatever he earned during the course of your marriage – and also to understand why, frankly, it’d be a bad idea to turn down that to which you are legally entitled.

Marriage and entitlement to spousal support post-divorce

Similarly, spousal support is designed to help offset the difference in earnings between husbands and wives. While retirement accounts are important, they represent future income. In most cases, it’s not liquid, so, although very important in terms of an overall financial plan, it’s not necessarily immediately helpful.

Spousal support – formerly known as alimony – is usually an amount of money paid each month for a certain period of time to offset the difference in earnings between two spouses.

Not every woman is entitled to receive spousal support; unlike retirement accounts, there’s no specific formula to determine entitlement. It’s actually a fairly complicated calculation. Although there’s a ‘formula’ that we often apply, there are also a certain number of criteria we have to look at and ultimately address in favor of the would-be spousal support recipient: (1) need versus ability to pay, (2) an analysis of the statutory factors, and (3) the duration of the marriage.

That means that there has to be a disparity in income (one party must earn considerably more than the other), that the negative and positive monetary and nonmonetary factors that each spouse brings to the marriage must support the award of support, that the statutory factors support the award, and that the marriage is of sufficient duration for support to be awarded.

There’s not only the question of whether support will be awarded at all, there’s also the question of how much support and, then, for how long.

It’s not hard and fast, black and white; it’s not concrete. Not only that, but the law was recently changed so that the party receiving it does not pay taxes on it, and the party who pays it is not able to deduct the amount paid on his own taxes. While that might sound good (who doesn’t love non-taxable money, right?), it often isn’t – the one thing, the only thing, that used to encourage an ex-husband to pay support no longer exists. So, instead of agreeing, however begrudgingly, we see more and more husbands willing to litigate to avoid paying it. And, the reality is that a spousal support case, any spousal support case, means that there is one spouse much more able to withstand the financial responsibilities of ongoing litigation than the other. So, you do the math.

Spousal support, too, is sometimes modifiable, and can even terminate, if (1) either spouse dies, or the recipient spouse (2) remarries, or (3) cohabitates in a relationship analogous to a marriage for a period of one year or more.

Still, I find that there are women who are uncomfortable asking for support, or who seem inclined to dismiss or diminish their contribution to the marriage overall.

There’s no question that these cases raise complicated issues, but what’s also complicated is trying to forge ahead with a post-divorce life without taking (or even attempting to take) your share of the entitlements.

You can learn more about your various entitlements, in addition to your marital share of the retirement accounts and potentially spousal support, by requesting a copy of our free divorce book, or attending a monthly divorce seminar. For more information, consider scheduling a one on one confidential consultation with one of our women only divorce attorneys. Give our office a call at 757-425-5200 for more information or to schedule.