Spousal Support: Marriages of 1-7 Years
Spousal support is one of those areas of law where there is a lot of room for argument and interpretation. In many marriages, regardless of how long they lasted, no spousal support is awarded at all. Why? Well, spousal support was always intended to be need-based. In the olden days, spousal support (or alimony, as it used to be known) was awarded because wives weren’t able to support themselves financially outside of the home. If the parties wanted to divorce, the husband still had a financial responsibility to her that wasn’t terminated by the end of the marriage.
Today, women can work outside the home, and many do. As a result, more women than ever are able to support themselves without the financial backing of their husband or ex husband. In cases where incomes are similar, no support is ever awarded—regardless of how any of the other factors are considered. You can probably understand the logic. If both parties are working and earning close to the same amount of money, why would one spouse have a duty to the other financially after the marriage ends?
When you are thinking about spousal support, you are really asking three separate but interrelated questions. The first question is “Will I get spousal support at all?” The second is, “How much?” The third is, “For how long?”
When courts and attorneys discuss spousal support, they look at three main factors: (1) need and ability to pay, (2) the statutory factors, and (3) the length of marriage. It’s a pretty complicated analysis, and you have to satisfy each factor before you can move on to the next. If you can’t demonstrate, for example, that you have a need and he has an ability to pay, the analysis won’t continue on to look at either the statutory factors or the length of marriage—spousal support wouldn’t be awarded because you don’t meet the first factor. Two of the three isn’t enough; you have to meet the standards set forth by all three factors to demonstrate that an award of spousal support is appropriate in your case.
All three factors, (1) your need and his ability to pay, (2) the analysis of the statutory factors, and (3) the length of your marriage relate to whether or not you’ll receive spousal support at all. We’ll talk more about each factor in a minute, but you do have to satisfy each prong of the test to qualify for spousal support. The question of how much support you’ll receive is related to the first factor, need and ability to pay. The question of how long you’ll receive support is related to the third factor, the duration of your marriage. Let’s talk more about each factor, and how it affects each of these questions.
Need versus ability to pay
We’ve already talked a little bit about need and ability to pay. It’s easy to demonstrate a need. If we look at your income and your expenses and determine that you don’t have enough to cover your bills, you have a need. But your need alone isn’t enough; you still have to demonstrate that your soon to be ex husband has an ability to pay. If he doesn’t have enough to cover his bills, either, then you may both have a need—but probably neither of you have the ability to pay. For your soon to be ex to truly have an ability to pay you spousal support, he would need to earn significantly more than you.
How much more? Well, it’s difficult to say. In the Hampton Roads area of Virginia, there is no established, accepted formula for determining the total amount of spousal support. It’s not quite like child support, where you plug the numbers into a calculator and the amount of child support pops out. Spousal support isn’t that easy. (Don’t you wish it was?)
Still, that doesn’t mean that there aren’t formulas that we use, even if they aren’t binding in our courts. In other areas, like in Fairfax and Harrisonburg, there ARE spousal support formulas, and I would be lying if I didn’t tell you that we use them (particularly the Fairfax one) to help give us an idea of where we should be coming in, spousal support wise.
Attorneys use software on their computers to calculate support based on the available formulas. All formulas take into account your respective incomes, and provide a figure that we use as a guideline for determining how much you’ll really receive. Usually, we just use that number as a starting point, and we either negotiate it from there, or we show it to the judge in your hearing and argue for at least that (or sometimes more) depending on the circumstances. Still, exactly how much support you’ll receive is directly proportional to how much he earns compared to what you earn.
The statutory factors
Next, if you’re able to demonstrate both that you have a need and he has an ability to pay, you’ll move on to an analysis of the statutory factors.
Of course, the way the statutory factors are handled is different depending on whether you have an attorney litigating your spousal support case, or whether two attorneys are working with you and your soon to be ex to negotiate spousal support. In a negotiation, a formal analysis of each and every individual factor is rarely performed. Instead, the attorneys will discuss the physical, mental, emotional states of their clients, and touch on their ability to work. The ultimate award of spousal support would then be negotiated. In court, though, each attorney would be responsible for making an argument to the judge that touches on each of the statutory factors in order to convince the judge that the award of support is appropriate.
The statutory factors are as follows:
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.
The reason these factors are important is that they touch on the contributions each party made to the marriage, which can be negative and positive (as in, both good for and bad for the marriage) and monetary and nonmonetary. These factors usually really allow moms to shine, because they highlight all the good things they did for the sake of the family—not just earning money at a job, but also helping with homework, running carpools, shopping, meal planning, laundry, and all the little things that it takes to keep a family running. (Let’s face it, moms do most of that, right?) We like these factors, because they usually help us bolster a pretty decent argument for support by giving us more ammunition to use.
These factors relate specifically to whether a person will receive support, but have less to do with how much and how long.
Duration of the marriage
So, we’re here. We’ve finally started talking about the point that, let’s face it, is going to be an issue for you if anything is. Duration of marriage relates to two of the three questions we identified earlier. Specifically, it relates to whether you’ll receive spousal support at all (chances are, if you’ve been married just 6 months, you won’t get support), and, if so, for how long.
Why? Well, in the court’s view, you are more or less dependent on your husband based on how long your marriage lasted. If your marriage ends in 6 months, chances are good that both of you can just go back to doing whatever you were doing prior to the marriage without the need for one to provide support to the other. Would it be difficult? Maybe. But still, a person who was married only a short time (in the court’s opinion) can only be so reliant on the other partner. Not only that, but the other partner doesn’t inherit nearly as much of a responsibility towards the other if the marriage was only 6 months long. Is it far to make a person pay support forever for a marriage that only lasted 6 months? In the court’s view, that seems excessive.
Keep in mind, though, that there is nothing in the Code of Virginia that says that if you’ve been married for a shorter period of time that you absolutely, positively cannot receive spousal support. Several years back, the General Assembly considered making a law that said something to that effect—basically, it divided up whether or not you’d receive spousal support based on the length of your marriage with certain predetermined limits set. That law did not pass. No law exists that says unequivocally that, based on how long your marriage lasted, you will or will not receive support. So, take a deep breath.
Still, because of that proposed law, a lot of judges and attorneys have a mindset that certain lengths of marriage entitle you to different awards of support. In marriages that have lasted less than 7 years, the presumption is (because of the original proposed law) that no support will be awarded.
That doesn’t mean that I’ve never seen shorter term marriages where support was awarded. On the contrary, I have. Often. It definitely happens, so I don’t want you to panic, especially if all the other factors (need versus ability to pay and the statutory factors) are weighing heavily in your favor. It’s probably a good idea to accept that you won’t (in all likelihood) receive spousal support forever, though. In most of the shorter term marriages that I’ve seen, spousal support is either not awarded, or is awarded for half the length of the marriage.
If your marriage lasted 7 years or less, it’s probably a good idea to build up your argument for support ahead of time, especially with respect to the statutory factors. Think a lot about your positive monetary and nonmonetary contributions. It’s also a good time to think about your potential to work. Are you disabled? Do you have a work history? What can you reasonably earn? An attorney can help you figure out where to get started, especially if you believe that receiving spousal support is critical to you being able to get back on your feet again.
As far as spousal support is concerned, it’s definitely more of an uphill battle in a shorter-term marriage, but it’s not impossible. Give our office a call at (757) 425-5200, and we can help.