A lot of people, military and civilians alike, are pretty unrealistic when it comes to post divorce spousal support. Though it’s certainly understandable (because, after all, if you’ve never been through a divorce before—and, sometimes, even if you have—how do you know what’s to be expected? All you probably are aware of is that the military has specific support guidelines, and that the Virginia statute says that a factor for determining whether and how much spousal support should be awarded is “[t]he standard of living established during the marriage”, it’s not particularly helpful, and it can certainly set some women up for disappointment later on down the road.
Most military spouses are aware that the military sets forth specific guidelines for supporting a spouse. Though you may or may not feel like those guidelines are generous, they often pose a problem because they are more generous (at least in Virginia) than the support set forth by the state statute. Why is that a problem? Because, though the military can set forth guidelines, it can’t change the law. The law in Virginia, and in every other state, is only the law set forth specifically by that state and adopted by the legislature. The law is not set forth by the military, and nothing that the military does, and no guidelines it adopts, are binding on the states in which their service members live.
A lot of times military support guidelines prevail when the parties are newly separated, and before they begin the divorce process. As you have likely found if you’ve begun researching retaining counsel to represent you in your divorce case, you can’t hire a military JAG attorney—you’ll have to hire an attorney licensed to practice law in the state in which you and your husband now live. Though a military JAG attorney is an attorney, a military JAG attorney handles different cases—and does not handle divorce cases in the state courts. They can’t, because, in most cases, they aren’t licensed to practice law in the state in which they live. They can practice military law, but that doesn’t authorize them to practice law in the state courts.
If you’re currently receiving the spousal support “required” by the military
Still, most military spouses believe that they deserve the support that would be allocated to them per military guidelines. Unfortunately, though, it doesn’t work that way—at least, not for long. And if you’re currently receiving support at the level “required” by the military, you may want to really think long and hard before you start to move your divorce forward in the Virginia courts. Sure, you’ll have to do it eventually (especially if either of you plans to remarry in the near or distant future), but if you’re receiving more in support than the Virginia courts would award you, you definitely have a decision to make. Are you going to move your case forward, even if you know it will almost certainly result in you receiving less spousal support than you’re currently receiving? Or, on the other hand, will you decide to wait it out, even if that means that you stay married to your husband longer?
To get the best idea of the options available to you, it’s always a good idea to talk to a licensed Virginia divorce attorney, who can help you calculate guideline support and figure out what your next steps should be. To talk to one of us, give our office a call at (757) 425-5200. We handle tons of military cases, and can definitely give you the full scoop on what steps will be in your best interests, including running child and spousal support guidelines for you for comparison’s sake.
If you’re not receiving spousal support as “required” by the military
If you’re not receiving spousal support according to the military guidelines, there may be very little you can do to force him to pay it.
Legally, there’s nothing we can do. Though we can get an order in place requiring him to pay spousal support (for more information on how spousal support is calculated and whether, under Virginia law, you qualify to receive it, continue reading on), we can’t get it awarded according to the military guidelines. Virginia law is what is binding on petitioners in Virginia courts, and there’s nothing we (as Virginia lawyers) can do to force him to pay per the military guidelines.
Getting an award of spousal support ordered by the court
So, what can we do to get an award of spousal support in place—and quickly?
There are a couple of different ways we can get Virginia spousal support established. Which route we go depends, in large part, on how difficult you believe your husband will be, and what has happened in your case up until this point.
For the most part, we have two options: we can either go to court, or we can negotiate. We can go to court to get support awarded as provided for by Virginia law (not the military guidelines). We can file for spousal support in the juvenile and domestic relations district court, or we can file a contested divorce and request that spousal support be awarded when we go to our pendente lite hearing. Either way, though, we can get spousal support awarded (provided, of course, that Virginia law allows for an award of spousal support in your case).
We can also negotiate. In a lot of divorces, the entire thing is done with a negotiated agreement. We call it a separation agreement, and it can handle everything—from retirement to spousal support and custody and visitation. If you’re not ready to go ahead and negotiate the whole shebang at this point, you can also negotiate a temporary spousal support agreement that can start while you’re waiting to negotiate the rest of your agreement.
Calling his command
Lots of military spouses think that the quickest and easiest ways to force their husbands to fall into line is by calling his command and complaining about his behavior.
Usually, it’s not a good idea. Remember—your ability to receive support depends on his ability to pay it and, if he loses his job (or is demoted or no longer promotable), you’re hurting yourself. In a lot of ways, in fact, your actions can have a negative impact on yourself.
I know it’s tempting to call his command, but usually you’d be better off seeking recourse in the courts.
Talk to an attorney about your individual case before you ever call his command.
Spousal support in Virginia
Spousal support in Virginia is not guaranteed and, in fact, it’s based off of a number of factors.
Need v. Ability to Pay
First of all, when it comes to a spousal support case, we look at need and ability to pay. You have to prove that you need support (though, admittedly, that’s easy enough) AND also that your husband has an ability to pay support to you (which may or may not be all that easy to do, depending on the disparity in your incomes). Both criteria must be met in order for you to qualify to receive spousal support. If you can’t demonstrate BOTH a need and an ability to pay, the analysis stops here, and you won’t receive spousal support at all.
Likewise, the statute provides factors that must be considered before an award of spousal support can be made. The statute includes 12 specific factors and a catch all, designed to take in the totality of circumstances as they existed between husband and wife. Take a look at the language from Virginia Code § 20-107.1:
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.
Length of Marriage
Additionally, when Virginia courts consider spousal support, they also look at the length of the marriage. This isn’t something you’ll find codified anywhere, however; the length of marriage is just one of the things that lawyers and judges consider when it comes to determining both whether spousal support will be awarded and, if so, how much.
For more information on Virginia spousal support, including whether you’ll receive it, how long you might receive it (if you qualify), and how much you might qualify to receive, give our office a call at (757) 425-5200.