For a lot of women, separating from their husbands means financial uncertainty. Whether the wife was the major breadwinner or not, splitting the money in two and maintaining two separate households is usually incredibly difficult. Not only that, but (excuse me if I’m propagating stereotypes) it usually is the wife who takes on the bulk of the childrearing responsibilities. Normally, the children life with the mom, and it is mom who provides the majority of the financial support. Even for moms who earn more than most, it causes financial hardship.
In the olden days, women didn’t have many opportunities. Husbands were responsible for providing for their wives, even after they set them aside, because the wives were unable to provide for themselves in any meaningful way.
Luckily for us, the world has changed. Women are able to support themselves, but, of course, that doesn’t mean that divorce suddenly doesn’t present financial difficulties. It does, and that is just the reality of the situation. So, even today, the law recognizes that one party or the other may have to provide some form of financial support to the other after divorce.
In this article, we’re going to talk about how spousal support in Virginia works. It’s definitely complicated, but it’s also possible to have a better understanding of the types of arguments you’re going to need to make if you’re anticipating asking for spousal support. In this post, we’re going to talk about what spousal support is, how we weigh the three different types of things that affect an award of spousal support, and how the amount of spousal support is determined.
What is spousal support?
The original system referred to the support that a husband paid to a wife after divorce as alimony. In Virginia, today we refer to this type of support as spousal support, rather than alimony. The definition of spousal support is a little broader than alimony, and includes the possibility that a wife would have to pay support to a lesser earning husband.
The idea here is to help equalize things, at least for a period of time. If one party earns substantially more than the other, that party can’t just disappear into the sunset and force the other to fend for his or herself. This is especially true if the lesser earning spouse earns less as a result of the decisions the parties made together when they were married. For example, it is relatively common for a married couple to decide to focus on one party’s career over the other’s, so that the other is free to stay at home (or be at home more often) with the children and take on the bulk of the responsibilities in the home.
Nearly everyone experiencing a divorce suffers from some kind of financial hardship. That, in itself, does not mean that you qualify to receive spousal support. To find out whether spousal support is something you can expect to ask for, read on.
How do I know if I qualify to receive spousal support?
Determining whether you can ask for spousal support is based on a complex weighing of three different elements: (1) need versus ability to pay, (2) the thirteen statutory factors, and (3) the duration of the marriage. Here, we’ll look at and discuss all three different elements.
Need versus ability to pay
The first consideration when you’re looking at spousal support is need versus ability to pay. If you’re asking for spousal support, you must earn less than the person from whom you’re asking to receive support. You have to demonstrate that you have a need (of course, this part is easy, because almost everyone can craft a compelling argument about how much better off they would be with a little extra money on hand), and you have to demonstrate that your husband has an ability to pay. (And vice versa, if he were requesting spousal support from you.)
If you make more than your husband, or if your incomes are too similar, you won’t receive spousal support, and the analysis would end here. There’s no need to go any further or consider other factors if you can’t demonstrate your need and his ability to pay. Without the ability to pay, there can be no spousal support, no matter how compelling the rest of your argument may be.
The statutory factors
Virginia Code § 20-107.1 provides thirteen factors that give additional guidance where spousal support is concerned. If you’re asking a judge to award spousal support, your attorney will make an argument that effectively summarizes these points and draws parallels between the factors and your life. The judge will consider these, and make a decision. On the other hand, if you are negotiating a separation agreement with an attorney, both your attorney and your husband’s attorney will negotiate an award of spousal support, keeping these factors in mind. Either way, these factors really provide the backbone for a discussion on spousal support. The 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.
As you can probably easily tell, the factors are wide ranging, and give you a lot of freedom to construct arguments that suit your purposes. It shouldn’t be hard to use the factors to illustrate reasons why you deserve to receive spousal support, but you should be sure to consult the factors when you’re crafting your arguments, and be sure that your arguments relate back to the factors.
Duration of marriage
The duration of your marriage also has an impact on your award of spousal support. As you can probably imagine, a three year marriage does not qualify you for permanent spousal support. There’s nothing in the statute that specifically defines how long is long enough to receive support. A few years ago, a statute was proposed that provided specific timelines for support, but it was ultimately rejected. Still, most attorneys and judges who are familiar with Virginia law use this proposal as a guideline for determining the length of an award for spousal support.
I’ll tell you about it, but I still want you to keep in mind that there is wiggle room here. This is not the law, so it’s not automatic. It’s just a starting point that you should consider. Keep in mind that none of these awards of spousal support are automatic. I’ve seen situations where short term marriages get more support than I would have thought, and where long term marriages get very little spousal support. As always, it’s best to talk to your attorney about your specific situation and what he or she thinks you might receive.
If you’ve been married 1-5 years, the presumption is that you won’t receive spousal support at all. The best case scenario is probably support for half the length of the marriage, but you should talk to an attorney if you’re in this situation and experiencing financial hardship. It depends on the other factors, too, but it’s possible that you could still receive some kind of support. (It is very, very unlikely that you will receive support for longer than the duration of the marriage.)
If you’ve been married 6-19 years, the presumption is that you’ll receive spousal support for half the length of the marriage.
If you’ve been married for 20+ years, the presumption is that you’ll receive permanent spousal support. This isn’t automatic, though, and I’ve seen a number of long term marriages where permanent spousal support is NOT awarded. Usually, it’s because the recipient spouse is able to work and provide support for herself, especially after a few years where her husband helps her get back on her feet. Permanent spousal support is a possibility, but it’s definitely not automatic.
Does adultery impact spousal support?
Yes! A thousand times, yes! If you’ve committed adultery, you can’t ask for spousal support from your husband. Likewise, if your husband has committed adultery, he can’t ask for spousal support from you. The court could only award you support if you committed adultery if you can show that “manifest injustice” would result if you were not awarded support. (Trust me, that would be a very, very difficult thing to do.)
Isn’t there some kind of spousal support formula I can use, like for child support?
No. I wish! Spousal support is a lot more complicated than child support, and in the Hampton Roads area, we don’t follow any kind of specific guidelines. Fairfax uses guidelines, and usually we sort of loosely follow the Fairfax guidelines, but not always.
In many cases, a spousal support award is very specific. It’s not about a guideline figure or plugging numbers into a formula, it’s a complex negotiation between the attorneys on both sides, and ultimately an agreement is reached. If you litigate your spousal support award in court, the judge will probably use Fairfax guidelines (or some other jurisdiction’s guidelines) to inform himself of what an appropriate range might be, and then listen to the attorney’s arguments before altering that award to suit the situation.
It’s pretty difficult to know ahead of time exactly how much support you could expect to receive, but your attorney will be able to talk to you about your specific situation in detail, and help you come up with a range of numbers that might be acceptable.
Like everything else, spousal support is a negotiation. Since there are so many absolutes, it’s definitely possible to negotiate something different for yourself than what the statute or the Fairfax guidelines allow. So, with spousal support, the good news (and the bad news) is that there is a lot of wiggle room. Lots of factors, like your age, education, and health, can also have a dramatic impact on your award. It’s hard to compare your situation to someone else’s, because there are so many unique factors affecting your award that it’s like comparing apples to oranges.
The best thing you can do is make an appointment with an attorney early on, and come up with a strategy with respect to spousal support, especially if you have an idea in mind of how much support you’ll need to receive. There are no guarantees, of course, but you can be sure that your attorney will work zealously to protect your best interests.
Kinds of Spousal Support Awards
There are all kinds of spousal support, and you’re really only limited by your creativity. There are some arrangements that we see more often than others, but there’s a lot of freedom for you to be creative and come up with a solution that addresses your specific concerns.
Temporary spousal support
Temporary spousal support is usually something that is set forth in a pendente lite order. It’s spousal support that’s ordered to be paid while the litigation is pending. After the litigation is over, whatever the parties agreed to in their separation agreement or whatever the judge ordered at the final divorce trial will take over.
Defined-duration spousal support
Most spousal support awards are issued for a certain amount of time, and the length of time would be specified either in your separation agreement (if you’re negotiating) or in an order of the court (if you’re litigating).
We usually see spousal support awards in years. One year, five years, seven years, and so on. There’s usually a reason for the number of years, whether it represents half the length of the marriage, or the number of years left until the recipient spouse can claim social security.
Defined-duration support can even be structured so that it increases or decreases over a certain period of time. You can have it so that, for example, for 5 years the recipient spouse receives $1,000 per month, then the following 3 years the recipient spouse receives $800 per month, and then the last 2 years the recipient spouse receives $500 per month, after which spousal support is terminated.
Permanent spousal support
Permanent spousal support isn’t exactly permanent, because it can be terminated if certain specific things happen. For example, if either of you dies, spousal support terminates. If the recipient spouse remarries, spousal support terminates. Additionally, if the recipient spouse cohabitates in a relationship analogous to marriage for a period of one year or more, spousal support terminates.
So, what does cohabitation mean? Well, it’s a fancy legal word that basically means “living together as husband and wife.” When you live together and hold yourselves out as a married couple to the rest of the world, you’re cohabitating. For spousal support purposes, if you do that for a period of a year or more, it will terminate your support.
Why? It’s pretty much just like remarriage. After you remarry, the law assumes that your former husband no longer has a duty to support you, because you have another husband to help provide support. If you’ve living together, even if you’re unmarried, but you’re behaving like a married couple, the law assumes that there is some mutual financial support going on, and that support is enough to terminate your former husband’s obligation to you.
Note that we’re not talking about roommates here. Having a roommate, even a roommate of the opposite sex, does not equal cohabitation. (Of course, that doesn’t mean that your husband, if he’s kind of a mean guy, won’t try to use your man roommate against you and take you to court. He might try it, and you would then have to prove that it’s not a romantic relationship and you’re not cohabitating.) We’re talking here about a romantic relationship, where you sleep in the same room, share financial responsibilities, and go out in public together as a couple.
Your spousal support will continue until one of these triggering events terminates it.
What do I do if my husband dies? I’ll still need support!
Obviously, none of us know exactly how long we’re going to live, so it’s difficult to know whether your spousal support is going to last as long as you need it to last. If you’re financially dependent on spousal support from your husband, it’s not a bad idea to take out a life insurance policy on him.
That’s something that we commonly put in separation agreements. You would probably be responsible for the premiums, but it may be worth it for the peace of mind that comes from knowing that there’s a little extra financial insurance in place to protect you in case something happens to him. If you’re completely dependent on that money, it’s not a bad idea.
Rehabilitative spousal support
Rehabilitative spousal support is support that is designed to help get you back on your feet until a time where it becomes more possible for you to be self-supporting. We see this most often in agreements where one party or the other plans to go back to school. Maybe they can’t support themselves alone today, but with a little extra schooling, it’s possible.
Lots of husbands find rehabilitative support a little easier to stomach, because (1) they aren’t paying support for forever, (2) they’re paying for education, and (3) they’re helping you become self-supporting, rather than dependent.
If you need re-training to get back on the job, want to pursue a degree, or get technical training, it might be a good time to ask. Many husbands feel better about paying for education than just paying money to you directly.
Rehabilitative spousal support is a great way to make yourself more marketable and come up with a way to be self supporting in the long run, so it’s definitely worth talking to your soon to be ex and your attorney about this possibility. After all, it can’t hurt to try!
“I don’t need his money!”
To many of us, the idea of taking money for support is repugnant. We’ve been raised to know that women are capable of accomplishing everything a man can accomplish, and the idea of reaching out and asking for help is offensive. If you fall into this category, I completely understand. Still, I want you to hear me out.
When you receive support, it really isn’t just for you. If you have minor children, you owe it to them as much as to yourself to be able to provide the best, most supportive, most appropriate family environment possible. It costs money to do that, and if the law entitles you to receive money from your former spouse, it’s because there’s a severe discrepancy in income. You aren’t worth less because you earned less during the marriage; your positive nonmonetary contributions were significant, because you kept the family going.
The law isn’t overly generous. The guidelines for child and spousal support don’t often give families MORE money than they need. You really do owe it to yourself and your children to take the support where the possibility for support exists. If you feel too guilty to use spousal support yourself, add it to the kid’s college fund, get them braces, or use it to help out your 401(k). Go back to school and take a couple of classes, so you’ll be able to support yourself in the future without his income at all.
If you qualify for spousal support, its because you both deserve and need it. Don’t be so proud that you don’t take it.
“I shouldn’t have to get a job. We agreed that I’d stay home with the kids.”
On the other hand, I see women sometimes who refuse to go back to school or try to get another job with more hours or a higher salary. The way they see it, they made a decision during the marriage that they were going to stay home (or reduce their hours) and take care of the children. Now that the marriage is failing, that decision shouldn’t be called into question. At one point, both parties felt that it was in their children’s best interests to run the family this way, so why should that change now? It’s totally understandable.
Not only that, but, as time passes, the parent who either reduced or eliminated work entirely becomes a more and more unlikely candidate for a good job. Technology changes, and skills become old and outdated. After a certain amount of time out of the job market, it becomes incredibly difficult to re-enter it. Not only that, but the skills and education you had before you missed the time in the market become less and less relevant, so the type of job you’re qualified for is one that is less then you feel you deserve.
There’s no question it’s a difficult situation, and you’re probably not going to like my answer. Still, the truth is that if you’re young enough and physically capable, you’re probably going to have to get a job eventually. Spousal support awards are not generally particularly generous, so you will likely have a hard time making ends meet without earning your own separate income.
“But if I earn money, won’t that mean my spousal support award is less?”
Yes. The way spousal support is calculated, your income will be considered, so his support obligation to you will be reduced the more you make.
It’s not a dollar for dollar reduction, though, so unless you earn a ton, it probably won’t knock out your support entirely. (And, if you do go out and make a ton, that’s awesome!)
Another thing that can happen is that the other side can hire an employment expert, who will tell the court how much you would be able to earn and what kind of jobs you’re suited for. If they do that, then sometimes the court will impute income to you, so that, even if you choose not to work, you’ll be credited with the responsibility of earning the amount of money that the employment expert says you can earn.
If you’re capable of working (and you probably are), you will probably find that you are much more comfortable if you get a job eventually. I like to think that you’d feel proud and empowered by working yourself, but, even if you don’t, there’s a certain sense of self-satisfaction that comes from not having to take money from your ex husband if you don’t have to. Take as much as you can, for sure, but don’t be so committed to avoiding the workforce that you hurt yourself in the long run. Getting a job can help make your post divorce years much more comfortable and enjoyable.
Do I have to get divorced to get it?
No. Usually, spousal support is awarded as part of a divorce action, but it doesn’t have to be. You can also go to the juvenile court and ask that the judge award you spousal support. The great thing about juvenile court is that you don’t really need an attorney to go. Lots of people do hire attorneys to represent them in juvenile court, but it’s not required. So, you can file a petition for spousal support, go in front of the judge, and ask that it be awarded. Anything that happens in juvenile court is appealable, so if you get a bad result, you can hire an attorney to represent you in your appeal to the circuit court. The case is heard de novo, which means that it will be a brand new hearing and it will be like the old one never happened.
If you live separately, you can also ask for separate maintenance, which is very similar to spousal support. It doesn’t happen all that often, but some couples choose to live apart and never get divorced. Still, your husband has a duty to provide financial support so that, even if you don’t get divorced, he can be obligated to pay support to you. If you fall into this category, you should talk to an attorney about your options for separate maintenance.
Do I have to pay taxes on it?
Yes. Spousal support is income to you, and it’s tax deductible to your husband. So you’ll want to keep track of the money you received and set aside a portion of it, because you’ll have to pay taxes on it in April. You can bet that he’ll claim his deduction, so you’ll definitely have to show that you received the support in your tax return.
If your husband is paying the mortgage instead of paying spousal support, you can still claim the mortgage interest deduction. (Think about it: he can’t claim a deduction for paying spousal support AND then deduct the mortgage interest.) Then, it’s like he gives you the cash, you turn around and pay the mortgage. He deducts the spousal support, and you deduct the mortgage interest.
Good luck! I hope that this has answered all the questions you have about spousal support and how it works. If you need help, or want to schedule a consultation with one of our divorce and custody attorneys, give our office a call at (757) 699-5796.