Spousal support is often one of the biggest, stickiest, trickiest areas in a divorce case. Almost everyone wants it and, of course, no one wants to be the one to have to pay it.
These days, spousal support is more or less equal opportunity; it’s not only paid to wives or only paid by husbands. Depending on the circumstances of your case, you could be either payor or payee.
In our area, there’s not a specific formula, like there is in a child support case, to determine whether a person would receive spousal support and, if so, exactly how much. We have formulas to help us determine how much spousal support might be, but none of the formulas we can use are binding in the general Hampton Roads area. (We typically use what we call the Fairfax formula, which is binding in Fairfax, and sometimes also use the Harrisonburg formula, but, either way, neither is binding on the courts here.) Spousal support could be more or less than the formula specifies or, in other cases, not awarded at all. It’s highly fact specific and dependent on the circumstances in each unique case.
In many of my cases, one of the first questions a client asks me is whether she’ll receive spousal support—and, if so, how much. (And then, after that, how soon can I get some kind of agreement in place so spousal support will be paid immediately!) It’s often a much more complicated question than other areas of law, and it depends on what we are able to negotiate balanced up against what we think a judge might award if the case were to go to trial (weighed against the potential—not inconsiderable–expense associated with going to court, which can seriously offset an award of spousal support).
Of course, you need to know—because you’re making big case-related decisions based on the information I give you. Right? Of course you are! Like any practical consumer, you’re trying to make sure the juice is worth the squeeze, so to speak, and I applaud you for your practicality. It’s not always possible, though, to know ahead of time exactly how things are going to work out, and, even though I do my best to give fair and accurate representations, I don’t have a crystal ball.
I had a client awhile back that retained me, and one of the biggest issues in her case (like in many of my cases) is spousal support. Her husband, a doctor, is a super high wage earner. She isn’t. Throughout their time together as a married couple (over twenty years at this point), she dedicated herself mostly to caring for the kids, and also working part time at a small art gallery. She earns a small wage, but she has a lot of autonomy in her day to day life, and she’s super passionate about art. She found something that worked for her in the sense of allowing her to take time to care for her children, when necessary, and also simultaneously allowed her to earn money on the side to supplement some of her expenses.
Her husband earned, by far, the bulk of the money in the marriage. Even so, though, she used the money she earned in her part time job at the gallery to pay for her own cars all throughout the marriage. She had some small inheritances here and there that also supplemented her expenses, and she used some of that money, too, to help pay for some of her kids college expenses. For the most part, her husband paid the mortgage and the other day to day living expenses, but the money that she earned was useful, and she was careful with it.
Now, she and her husband are talking about divorce. Even though she wants the divorce, it’s a heart wrenching decision. (In my experience, that’s almost always the case.)
Because it’s a long term marriage, and because her husband earns so dramatically much more than her, hers is a good case for spousal support. I’m not here so much today to talk about the factors or what plays into a decision for spousal support, but you can read more on this topic if you’d like—I’ve written pretty exhaustively about the factors and need versus ability to pay and more.
My client needed support, and quickly. She was planning on moving out of the marital home a quickly as possible because things were deteriorating so quickly between her and her husband. She wanted to find somewhere else to live but, on her meager salary, wasn’t sure what she could afford. She hired me and wanted to discuss her options.
Here’s what happened.
So, when my client, Maureen, hired me, we faced a bit of an uphill battle. Though it’s often the case, there was a little pressure on me to get something done—and quickly—so that my client could get what she wanted (by moving out) in the short term, as well as in the long term (by getting a good award of spousal support that would allow her to start over fresh).
We don’t have a ton of options. A lot of times what we do in cases like this is try to negotiate a temporary spousal support agreement just to start out. It’s not permanent (obviously, hence the word temporary, right!), but it can help make sure the bills get paid while we’re negotiating the rest of the divorce. The catch is that we can’t MAKE him agree to sign a temporary spousal support agreement, either. If he’s pigheaded…well, you know.
In Maureen’s case, the first thing I did was draft a temporary spousal support agreement. Because their incomes were so disparate, it was pretty unreasonable to expect her to be able to pay her share of the bills on her own, without any contribution from her husband. Fortunately for us, in Maureen’s case, her husband hired an attorney almost immediately, and, with his attorney’s help, we negotiated a temporary spousal support arrangement within a month.
Of course, it’s not a perfect agreement—because we can’t force him to sign anything, we had to accept, at least temporarily, a spousal support award that is smaller than what we’d like to see in a permanent order. Still, when I spoke with Maureen, she indicated that it was more important to her to get a smaller award in place more quickly than to waste a lot of time (and money) fighting over getting a bigger temporary award in place. In this case, it was a win—and, of course, we’ll have time, later, to negotiate a bigger permanent award of spousal support. This way, though, we kept the wolves from the door so that she can afford to keep negotiating the case itself.
Did we have any other alternatives as it relates to temporary spousal support?
Yes, we did have at least one other option. If Maureen’s husband had refused to come to the table, we could have filed for a fault based divorce (in Maureen’s situation, we could have used cruelty as our grounds) and scheduled a pendente lite hearing.
Pendente lite is Latin for “while the litigation is pending” and, in a divorce case, it allows us the opportunity to get certain things decided, on a temporary basis, before the final divorce decree is entered. At the pendente lite hearing, we could ask the judge to award temporary spousal support and, in Maureen’s case, it almost certainly would have been awarded.
The catch? If we had taken this course of action, Maureen would have had to have retained for a contested divorce, rather than an uncontested one. (For more information on the difference, including ball park costs associated with each different type of divorce, click here.) That increases the costs exponentially, and, of course, it sort of changes the tenor of the case. Does that matter? Maybe, but not necessarily, but I do think there’s a not so subtle difference between sending your husband (or his attorney, if he’s represented by counsel) a temporary agreement and saying “let’s work this out” and having him served with a divorce complaint and saying “let’s let a judge handle this one.” It’s up to you, though, and it may be that, in your case, one option seems more reasonable or likely to succeed than another, so it’s always a good idea to sit down and talk with an attorney one on one about options in your particular case.
How quickly can we get an award of spousal support in place?
Like with anything else, it depends. In another case of mine where temporary spousal support was an issue, I sent a draft agreement to a husband who signed and returned it to me within 48 hours. In Maureen’s case, it took nearly a month.
If you need to schedule a pendente lite hearing, you can be sure that it’ll take at least a month to get a date and get into court to litigate the issue. Depending on the court you’re in and how backed up their docket is, it could take longer.
You may find, too, that your husband simply won’t agree to a temporary spousal support award, or that the judge is a little more reluctant than you might wish. That doesn’t mean you won’t get spousal support in the long run, but temporary spousal support is by no means guaranteed. It can be a quick process, like in my second case, or it can take awhile—or, in the worst cases, it can not be granted temporarily at all.
For more information about temporary spousal support and how to get it awarded in your case, give our office a call at (757) 425-5200.