Imputation of income in Virginia: When it hurts you

If you’ve been a stay at home mom or you’ve significantly reduced your hours in an effort to promote the well being of your family and you’re now headed towards divorce, you’re probably a little concerned.
And—that’s probably an understatement. Financially, divorce is probably pretty terrifying to you, even if it’s something that you know you want.
Spousal support is probably the biggest issue on your mind because, whether you have kids or not, you know you’re going to need a little extra help getting back on your feet.
Spousal support is probably also the biggest issue on your husband’s mind, too, because he, like every other husband in the world, does not want to pay it. In fact, he probably tells you all the reasons why he won’t have to pay it—you haven’t been married long enough, you’ll have to go back to work and earn your own money anyway, whatever he thinks will worry you the most.
Unless your husband is a family law attorney (and probably even if he is), most of what he’s saying is calculated to scare you. Either that, or just to make himself feel better. Either way, though, you shouldn’t listen to him. If you’re wondering about spousal support, you should talk to an attorney about your particular case. Or, if you’re short on time and need some details quickly, you can just read this article.
First, let’s talk about spousal support. Specifically, let’s talk about how spousal support is awarded.
In Virginia, spousal support awards are based on three things: (1) need and ability to pay, (2) the statutory factors, and (3) the duration of the marriage. For a more in depth discussion of these factors affecting spousal support, click here.
These three things determine whether or not spousal support will be awarded and, if so, for how long. Generally speaking, for a mom who has stayed at home or significantly reduced her career (to her detriment) for the sake of the family, we can make a pretty good argument for why she should receive spousal support.

How much support will I get?

The question of how much support you’ll receive and for how long is a different discussion entirely. The question of how much support you’ll receive isn’t at all related to the 3 criteria I just laid out; how much support you’ll receive depends, specifically, on your income and your husband’s income. For starters (to satisfy the need and ability to pay prong of the 3 part test), we’ll have to prove that he earns significantly more than you.
“How much?” is a hard question to answer, because, in our area at least, there are no formulas to specifically establish it. Unlike child support, where you plug the relevant numbers into a formula and out pops a guideline figure, spousal support has no accepted guideline in Hampton Roads. To get an idea of what spousal support might look like, we often use other formulas (there are formulas that are applied in both Fairfax and Harrisonburg, for example)—but they aren’t binding on our judges.
For the best idea of how much support you might receive, you’ll probably want to schedule an appointment. You can schedule an appointment with our office at (757) 425-5200.

How long will I receive support?

This is a tricky question, too. There’s no bright line rule that says specifically how long you have to be married to qualify for spousal support. A number of years back there was a law proposed that would have established certain requirements based on the length of marriage, but that law never passed. Still, the length of marriage is something that most judges and attorneys look at, and you can be sure that your husband’s attorney will be making assumptions based on how long you’ve been married. Let’s look at what the law originally proposed.
Even though it’s not the law, it matters how long you’ve been married. For shorter term marriages (which we sort of loosely define as marriages of 7 years or less), the presumption was that no spousal support would be awarded. That doesn’t mean that, after 7 years or fewer, it would be impossible to receive support. It’s just a general guideline.
For medium-length marriages of around 8 to 19 years or so, the presumption was that spousal support could be awarded for half the length of the marriage. Then, for longer-term marriages of twenty or more years, the presumption was that permanent spousal support would be awarded.
Now, before you celebrate (or lament), let me say: this law did not pass. And, even if it had, in the interim period, permanent spousal support has become less and less common.

What’s permanent spousal support?

Permanent spousal support, unlike defined-duration support, goes on until something happens to terminate it. Specifically, (1) the death of either party, (2) the re-marriage of the recipient spouse, or (3) the cohabitation of the recipient spouse in a relationship analogous to marriage for a period of one year or more terminates spousal support.
Permanent spousal support is awarded less and less frequently all the time. I still see it happen, especially in cases where one spouse has stayed at home, but it’s definitely not guaranteed.

How is spousal support established?

Spousal support can be established in one of two ways: either it’s established in a signed agreement between the parties, or it’s litigated in front of a judge.
This is a tricky part, too. Obviously, it’s cheaper and easier to negotiate a signed separation agreement rather than bring the whole spousal support issue up in front of a judge. Still—how do you get a signed separation agreement? Well, to put it simply, you have to actually reach an agreement. You know. With your husband.
I’m sure you can understand how that might be tricky. Permanent spousal support is less and less popular these days, with many judges feeling like ex spouses are responsible for going out into the world and earning whatever it is they are capable of earning, even after years out of the workforce. (That doesn’t mean, of course, that a judge expects a stay at home mom to rocket onto the professional scene earning $100,000 a year. It’s mostly just that, if a stay at home mom can earn $8 an hour working at GEICO, she should earn it, rather than staying at home.) Knowing all this, your husband may be less willing to negotiate with you where permanent spousal support is concerned; he might be tempted to offer less (say, for half the length of the marriage) and then, if you want to fight it, force you to take him to court and let the judge decide.
For many women, the costs associated with litigation make the alternative a little unpalatable, especially since, in many cases, it’s not exactly guaranteed that you’ll get what you’re after (i.e., permanent spousal support) if you let the judge decide.

What is imputation of income?

So, remember how I said that judges sometimes feel that if you’re capable of earning $8 an hour, you should be earning it?
Here’s what we see happening some these days. If you and your husband can’t reach an agreement about spousal support, it’s going to court. In the courtroom, because you have to present evidence, experts sometimes get called in to testify.
In spousal support cases, one of the experts we see most frequently is an employment expert. An employment expert is a person (hired by opposing counsel) who comes in and tries to evaluate how “employable” a person is. In your case, the employment expert would look at your employment history, education, experience, and other qualities to determine what kind of job, if any, you could hold, and how much money you could reasonably be expected to make.
If the employment expert testifies at trial and says that you could get a job at GEICO making $8 an hour, the judge may impute income to you. (Notice I said he MAY; it’s not required.) What that means, essentially, is that, whether you choose to work at GEICO (or find some other similar job) or not, you could be held responsible for earning $8 an hour.
Does that mean you won’t receive support at all? Not necessarily. Again, that would kind of depend on how spousal support was calculated in your case. To get an idea, if you came into our office, we’d start by running guidelines—and negotiate from there. It’s all a question of how your income and his income compare, and whether, even with the $8 an hour (or whatever you might earn) factored in, spousal support is still warranted.
The judge can’t MAKE you get a job, but he can force your hand a little bit.
Spousal support cases are complicated and you will probably want an experienced attorney to help. For more information, or to schedule an appointment with one of our licensed and experienced divorce attorneys, give our office a call at (757) 425-5200.

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