When we’re thinking about spousal support, we’re thinking about three things. First, “Will I get spousal support at all?” Second, “How much spousal support might I receive?” Third, “How long can I receive spousal support?”
In this article, we’ll discuss spousal support at length, including each of the three factors that relate to whether judges award spousal support (or, in the case of a divorce that’s negotiated, how attorneys negotiate support with each other), and how each of the three factors relates to the three questions we’ve already outlined.
Let me just say, at the outset: spousal support is tricky! In divorce and custody law, there are lots of things that are quickly and easily determined, and don’t involve a lot of complicated analysis or argument on either side. They just are, and we accept that. Let’s take retirement accounts for example. If you’ve been married ten years, and during all ten of those years your husband was employed by the same company, your marital share is half of what was earned during the marriage. Whatever was earned prior to the marriage or after the marriage is separate, and you have no claim on it. There’s nothing to argue about; it is what it is.
Spousal support is not like that. Spousal support is probably the area (in divorce law at least) where there is the most 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 (or allowed!) to support themselves financially outside of the home. If the parties wanted to divorce, the husband still had a financial responsibility to her that didn’t just end because of 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 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? According to the court, in Virginia at least, they don’t, even if they’ve been married for a pretty long time.
In Virginia, three factors affect whether or not a person will receive spousal support, how much, and for how long. Specifically, these factors are (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 (yup, even if you’ve been married fifteen years!)—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 detail, 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.
(Your) need and (his) ability to pay
We’ve already talked a little bit about need and ability to pay. But what does it mean? How do you prove it? In most cases, it’s very 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 the support that you need. If we look at his income and expenses, and he doesn’t have enough to cover his bills, either, then you may both have a need—but under this scenario neither of you would 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 is “significantly more’? Well, it’s difficult to say. In the Hampton Roads area of Virginia, there is no specific formula for calculating the amount of spousal support. It’s not at all like child support, where you can quickly and easily plug the numbers (for income, health insurance, and work-related child care) and determine the amount of child support that would automatically be awarded. Spousal support isn’t quite so easy.
That’s not to say that formulas don’t exist. In Hampton Roads, there are no formulas that are binding on the courts—meaning that the courts don’t have to use them. Still, that doesn’t mean that there aren’t formulas that we use, even if the courts don’t always go by them. In other areas, like in Fairfax and Harrisonburg, there ARE spousal support formulas. We use them (particularly the Fairfax guidelines) to help give us an idea (or, at least, a baseline) of what we might be able to expect, as far as spousal support is concerned.
Attorneys use software on their computers to calculate spousal 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 from the Virginia Code.
The statutory factors are important, but they can be used differently, depending on the type of case you’re facing. In a negotiated divorce (one where your attorney and your husband’s attorney work together to negotiate a separation agreement), the factors are applied a little bit differently than they would be if yours was a litigated divorce (one where the judge will ultimately decide how everything will be divided and whether spousal support will be awarded). 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:
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 factors are important because they deal specifically with what each party did to either support or damage the marriage. The statutory factors deal with both negative and positive and monetary and nonmonetary contributions each party made to the marriage.
In most cases, the statutory factors only help bolster our argument. These factors usually really allow moms to shine, because they highlight all the good things mom 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 usually do most of that, right?) We like these factors, because they usually help us support an already good argument for support by giving us more ammunition.
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
The length of time your marriage lasted is important when it comes to spousal support. 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. A person who, on the other hand (like you), has been with her husband for 9 or more years probably IS fairly reliant on her partner. If you’ve had children, you may have decided to stay home, work from home, or in some other way cut back your career for the sake of your family. Because you’ve had time, you’ve made decisions to benefit your family that may have harmed you personally, both in terms of your earning potential and your ability to get back on your feet after divorce. Maybe you’ve moved or done something else to help support the family.
Not have you had to make sacrifices for the family, but your partner shares the responsibility for the decisions you’ve made. If you’ve decided to stay at home to raise the children, that was a decision that will affect your potential to earn after the divorce, if you decide (or are forced) to return to the workforce. Since it was a decision that he participated in, he is also responsible (at least partially) for helping to support you after the divorce.
Keep in mind, though, that there is nothing in the Code of Virginia that says that if you’ve been married for more than 9 but less than 19 years that anything is automatic. 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 more than 8 but less than 19 years, the presumption is (because of the original proposed law) that support will be awarded for half the length of the marriage (provided, of course, that all the other factors support an award of spousal support).
So what can you expect? Half the length of the marriage is probably a good place to start, though it is possible to go upwards or downwards, depending on the facts that surround your case. Keep in mind, too, that these predetermined amounts of time aren’t set in stone. Just because you’ve been married eighteen or nineteen years doesn’t mean that you can’t convince the court that you deserve to receive permanent spousal support. Remember: there is room for flexibility. Still, in most of the mid-length marriages that I’ve seen, spousal support is awarded for half the length of the marriage.
If your marriage has lasted between 8 and 19 years, 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, you’re not in bad shape! Since your marriage has lasted a considerable period of time, as long as the other factors support your award of spousal support, it’s probably going to be possible for you to receive support. Of course, your individual facts and circumstances matter a lot and can change this analysis, but you’re at least off to a good start. For more information or to get the help of an attorney in determining how much support you’ll receive, if any, and for how long, give our office a call at (757) 425-5200.