How Spousal Support Works: Part One

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 two part 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.

On Friday, we’ll publish the second article in the spousal support series. We’ll talk about the different types of spousal support awards (and how you can articulate what you’re asking for in such a way that you’re more likely to receive it), talk about some objections I hear regarding spousal support, discuss whether you should consider getting a job, and explore the tax consequences of spousal support. Stay tuned!

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