Spousal support strategy in Virginia divorce cases

Spousal support is tricky. In fact, in a lot of cases, spousal support is the sticking point. It is very often the difference between a case that we can settle fairly easily, and one that we have to take to court to let the judge decide. In many cases, one spouse needs it, and the other spouse is equally desirous of not having it awarded.
Financially, divorce is complicated—for both parties. Of course, for my part, since I only represent women, my interest is in getting spousal support awarded to my clients. Though it’s not always women, especially these days, who are seeking awards of spousal support, it is still fairly often a situation that we come up against. Regardless of how educated and professional many of my clients are, lots of them have made decisions, always for the good of the family, that have hurt them economically. It’s hard to maintain a grueling work schedule and successfully raise children, take care of a house, and provide the love and support a husband needs to succeed. Though there are certainly cases where my client is on the other side, in many cases, it is still my client who is asking for (and deserving of) spousal support.

What do you need to know about spousal support case strategy?

Strategically, there are a lot of different facets to a case that turns exclusively (or, at least, almost exclusively) on the issue of spousal support. Unlike child support, spousal support is not guaranteed. Likewise, it’s also not determined by a formula. A lot has to do with the specific facts of the underlying case.
All too often, I talk to a woman who says, “Well, I know a woman who is in the same kind of situation as me, and she got a lot of spousal support.” Not to burst your bubble, but spousal support cases don’t often translate like this. Besides, it’s hard to know that two situations do or don’t match up as well as you think they might. Because the court is looking at so many different factors when it comes to spousal support (which, by the way, the attorneys on each side are certainly also trying to weigh in negotiations for spousal support), situations that may look similar may actually be quite different. So, before you go comparing your case to someone else’s case and trying to extrapolate conclusions, read on.

How do courts determine how spousal support is awarded in Virginia divorce cases?

Spousal support is complicated, and it’s based on a lot of different competing factors. Whether your case is being decided by a judge or you’re trying to negotiate an agreement between your attorneys, we all have to keep certain, specific factors in mind. Knowing what the factors are, and figuring out how to work with them, can go a long way towards developing your spousal support case strategy.  Let’s talk about each of them.

Need and ability to pay

When it comes to spousal support cases, before you go any further, you’ll have to demonstrate both that you have a need and also that he has an ability to pay. That means that he has to earn substantially more than you. If your incomes are similar, or if he earns less, you’re going to have a different time convincing a judge that he has an ability to pay—regardless of whether you have a need.
Both of these factors need to be clearly determinable. Without proving both that you have a need and that he has an ability to pay, there’s no possibility to negotiate further. Your analysis stops here.
You can demonstrate both a need and an ability to pay? Then you can move on to step 2: considering the statutory factors.

The statutory factors

You’re talking to a lawyer so, obviously, the law matters, right? Of course it does! The next step when it comes to analyzing a spousal support case is to go to the statute. Virginia Code § (that little squiggly line means ‘section’) 20-107.1 provides specific factors that relate to whether spousal support will be ordered in a particular case. The specific factors provided by statute 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.
As you can probably already tell, this is where differences between cases become the most apparent. Even though you and a friend of yours (or a friend of a friend) may have been married for a similar period of time, stayed at home, and had husbands who worked for the same company earning a similar income doesn’t necessarily mean that your cases are as similar as you might think.
At this point, we start to look at other factors—like the physical and mental condition of the parties, the education, training, and work experience each party has received, the standard of living established during the marriage (though, of course, it’s not realistic to imagine that your standard of living won’t change at all—it almost certainly will), taxes, and more—and that starts to play a much bigger role in the way things play out. When you start looking at a case in all it’s minutiae, you start to see pretty big differences. Plus, we’re not done analyzing!

Length of Marriage

The length of marriage (which is also a factor the statute considers) is important for two reasons: it affects not only whether you’ll receive support at all but also, if so, for how long. Even though this isn’t codified in the statute (obviously, because now you’ve read it!), it’s still a factor that judges and attorneys will consider when it comes to an award of spousal support. It’s not rocket science; in fact, if you think about it, it makes sense. Traditionally, shorter term marriages don’t warrant an award of spousal support; longer term marriages, on the other hand, do (because, of course, the spouses relied increasingly on each other through that time). Likewise, in a longer term marriage, spousal support would be awarded for a longer period—usually, we’re talking about half the length of the marriage to permanent support (awarded until death, remarriage, or cohabitation).
Strategic choices when it comes to spousal support
In lots of cases, there are still choices to make about how to move the case forward (unless, of course, based on an analysis of the previous three criteria an award of spousal support is not warranted).
One of the things attorneys have to consider is modifiability. Will spousal support be changeable later, depending on the parties changing circumstances? If husband gets a raise, will spousal support go up? Similarly, if he gets a demotion (or if he retires, which is probably a far more likely scenario), will spousal support go down?
The rule is that spousal support that is established by agreement is not modifiable. It doesn’t go up with the raise or down with retirement.
Spousal support that is determined by the judge, on the other hand, is modifiable.
So, which do you prefer? I guess that all depends on you, but it is something you should think about. A lot of times we find, particularly in cases where husbands are older (and, obviously, seriously thinking about what will happen to them when they retire), that the other side is unwilling to settle and reach a written agreement. Instead, they prefer to go to court and let the judge decide, knowing that spousal support will then be modifiable.
Modifiable is both good and bad but, for my part, I prefer to negotiate something that isn’t modifiable, because it gives my clients a sense of security and stability.
But how will it work out in your case? What should your spousal support case strategy look like?  It all depends on the facts. It’s a good idea to start thinking about your strategy when it comes to your award of spousal support sooner rather than later. For more information, or to talk one on one with an attorney about your case, give our office a call at (757) 425-5200.

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