I get a lot of questions about spousal support. Mostly, women want to know whether they will receive it and, if so, for how long. The answer is kind of complicated, but I’m going to do my best to explain to you what factors are involved in making a determination of spousal support, and what I typically see happening in divorce cases these days.
Spousal support originally came about because, in the olden days, it was difficult (or, if you go back far enough, impossible) for women to earn a living on their own without a man supporting them. For awhile, women couldn’t even own property in their own right! Fathers were responsible for daughters up until the point of marriage, and, at that point, the husband took over the responsibility of caring for his wife. It was incredibly difficult to get a divorce in those days, but, if it happened, the husband was still responsible for providing for his wife’s care, unless and until she either died or remarried, mostly because the reality of life in those times was that women couldn’t provide support for themselves on their own.
Luckily, things have changed. Divorces are much more common, and there is far less stigma. Not only that, but the opportunities for women today, before and after divorce, are better than ever. I think it’s pretty safe to say that they aren’t where they should be, but there’s no doubt that we’ve come a long way.
Spousal support has adapted and evolved over the years as society has adapted and evolved. Now, rather than calling it “alimony,” we call it “spousal support,” because it’s more gender neutral. That’s right, the way the law is written today, at least in Virginia, allows both men and women to ask for support from their partner—provided, of course, that the circumstances warrant such an award.
Unlike child support, spousal support is not determined by a formula—at least, not in our area. In Fairfax, and several other areas throughout the state, there are guidelines that are presumptive. That means that the court uses the guidelines, unless there’s some compelling reason to deviate. In the Hampton Roads area, although many courts use Fairfax guidelines to get an idea of what a spousal support award might look like, there are no presumptive guidelines. We don’t have to use any specific formula, so there are a lot of different alternatives in any given case. Generally, we use Fairfax guidelines to start, but there is a lot of flexibility. Still, there are some things that we can use to help determine how much spousal support, if any, should be awarded, and how long that award should last.
Need v. Ability to Pay
Any analysis regarding spousal support begins with determining whether one spouse has a need and whether the other has an ability to pay. It’s pretty easy to identify a need. We can present information to the court regarding your income and expenses, and easily demonstrate to the court that more money coming in would make things easier on you.
We also have to show that your husband has an ability to pay. That’s a little trickier. Even if you are in desperate need, if he makes less than or the same amount of money as you, you won’t receive spousal support because he doesn’t have an ability to pay. In order to demonstrate that your husband has an ability to pay, you will have to show that he makes substantially more than you. If you are unable to show that there is a discrepancy in income, the analysis ends here, and you won’t receive spousal support.
The Statutory Factors
Virginia has also developed factors, which are printed in the statute, Virginia Code § (that means section) 20-107.1. If you have an attorney, he or she will use these factors to help make an argument in your favor. The judge will listen to your attorney’s argument (and the argument from your husband’s attorney about why you should not receive support or, if you do, why you should only receive it for a short period of time). It’s definitely worth reading and being familiar with the statutory factors. 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, as are necessary to consider the equities between the parties.
If you’re planning on asking for spousal support, you should begin formulating your argument for why, according to these factors, you deserve to receive it. These factors are written purposely to include the contributions that women make to their families. Whether you’re a working mom or you chose to stay at home for your children, you should be able to formulate an argument about the monetary AND non monetary contributions you made to the family. This is where you’ll really shine.
Duration of spousal support award
How long you’ll receive spousal support is often complicated, too. A number of years ago, the Virginia legislature rejected a law that would codify (meaning, put into law) a statute that provided a black line rule for how long a person should receive spousal support. Notice that I said the law was rejected. This is NOT the law. However, it’s something that most judges and attorneys are very aware of, so it informs our decisions and negotiations regarding support, so it’s good for you to keep in mind. Remember, too, that, since this is not the law, there is a not of wiggle room. Don’t get caught up in the number of years that I list and think that you’ll get permanent spousal support or no spousal support at all.
Under the proposed law, in marriages that lasted from 1-5 years, neither party would receive spousal support. In marriages that lasted between 6 and 18 years, spousal support could be awarded for half the length of the marriage. In marriages that lasted 19 years or more, permanent spousal support could be awarded. Still, don’t get excited or dejected; remember that this only provides a benchmark or a starting point, it doesn’t necessarily dictate what might happen in your situation. I have seen short term marriages of 3 or 4 years receive spousal support for a period of time (though never longer than the length of the marriage), and long term marriages where a permanent award of spousal support wasn’t even considered.
It’s probably true that, in most cases, there is a beginning and end date for spousal support. Permanent awards of spousal support are more and more rare all the time, especially as employment opportunities for women have increased.
Will I have to get a job?
It's really very likely that, eventually, you'll have to get a job, even if you've been out of the workforce or working part time since your children were born. For a lot of women, particularly those who have stayed at home for a period of time or are a little bit older by the time of their divorce, the idea of going back to work is repugnant. Still, I think it’s safe to say that the trend we are seeing these days is that women are going back to work. Spousal support awards are rarely so generous or so long-lasting that women can avoid the workforce entirely.
Your work history and your earning potential are factors that affect whether or not you’ll receive support (if you re-read the statutory factors, you’ll see these concerns reflected there), so this is something that the judge will definitely consider. Still, most judges these days don’t really like to award permanent spousal support to women who are otherwise able to work and earn their own income.
If you haven’t been working, or if you’ve only been working part time during your marriage, you’re probably wondering how much money you could possibly earn. Of course, a lot of this depends on your education and the work experience you had before your marriage and children interrupted your professional career. In some of the recent cases I’ve seen, courts have ordered vocational experts to determine what kind of employment, if any, a person could obtain and what level of income, if any, they might be expected to earn. If you have a vocational expert appointed in your case, you can expect them to do some serious digging into your background to determine what kind of work you are fit to do. They’ll even make recommendations for specific jobs that you could apply for.
A vocational expert almost always finds that you are capable of working and earning at least some income on your own. What happens then is that the opposing party will want to impute that income to you. Since you’re capable of earning however much money the vocational experts suggests that you could earn, they will argue that you should be credited with the responsibility of earning that level of income. Then, your spouse will only have to pay whatever spousal support would be awarded after taking your theoretical income into account. So, if the vocational expert says that you could make $30,000 a year on your own, your husband’s spousal support obligation would be far, far less than if you weren’t making anything.
Vocational experts aren’t used in every case, but I do see them relatively often, and they don't usually find that you're not capable of some kind of employment.
What if I’m disabled?
If you’re permanently disabled, this will help your argument for spousal support, particularly in a long term marriage, where your husband knew about the disability. If you’re unable to work because of your disability, the vocational expert (if there is one) would say so.
You should talk to an attorney one-on-one about your disability, your job prospects, and your chances of getting a spousal support award.
What’s the difference between negotiating spousal support and litigating it?
There is a ton of difference between negotiating an award of spousal support and litigating it. Up until now, we’ve been talking about what might happen to you if your case went to court, and your attorney argued with your husband’s attorney about how much support you should receive.
In most cases, spousal support is determined outside of court. The parties make these agreements themselves, without a judge or a vocational expert getting involved. Your attorney can work with you to help negotiate an award of spousal support, if an award of spousal support is warranted in your case, which is often easier than going to court. It is certainly less expensive!
Depending on the facts in your case, your award of spousal support could vary dramatically. There is really no black and white answer to how much spousal support you might receive, or how long you might receive it. These factors should help give you an idea and inform your opinions on the subject, but the best way to figure out what you might be entitled to receive would be to talk to a licensed and experienced Virginia divorce and custody attorney. Give our office a call at (757) 425-5200 to talk to one of our attorneys about your spousal support award today.