Just like there’s more than one way to skin a cat (I’ve always hated that saying), there are about a million different ways that spousal support can be configured, especially if you and your husband are committed to negotiating an agreement, rather than going to court to litigate your divorce.
Of course, as we’ve discussed before, spousal support is complicated, and depends on 3 factors, including: (1) need and ability to pay, (2) the thirteen statutory factors, and (3) the length of marriage. For an in-depth analysis of spousal support, including a discussion about whether you can expect to receive it, click on the link that reflects the number of years you’ve been married: 0-7 years, 8-19 years, or 20+ years.
For the purposes of this article, let’s just assume you would be awarded spousal support.
Why does it matter whether our divorce is negotiated or litigated?
Different types of divorce work in different ways. When you litigate a divorce, you put the facts and evidence in front of the judge and, ultimately, he (or she) decides how everything will be handled. The judge has many of the same options available as you, for the most part, but that doesn’t mean that he has the time, energy, or capacity to be as creative as you might like him to be when it comes to handling your particular situation. Judges are pretty heavily booked, and it’s unlikely that a judge will spend a lot of extra time going back and forth over your situation, trying to make sure that it’s “just right” for you. It’s not that the judge doesn’t care; it’s just that there’s really not time.
When you’re negotiating an agreement, on the other hand, there’s no judge involved. Instead of the judge ordering things divided a certain way, when you negotiate an agreement, the two of you work with your attorneys, if you’re represented by counsel (though, in Virginia, there is no requirement that you have to hire an attorney to get a divorce) to reach an agreement.
Agreements are great, because they give you tons of flexibility. You can agree to almost anything you want, so long as it’s not illegal or unconscionable (a fancy legal word that basically means that the agreement is so one sided that no reasonable, rational person would agree to it). That means that you’re free to be creative and come up with something that truly works for you, which is pretty cool, especially compared with the types of things that judges usually order. If you can come up with an arrangement that works for you and works for your husband, you’ll never have to leave things in a judge’s hands.
What are the types of Virginia spousal support?
There are lots of different ways that spousal support can be arranged. Let’s discuss.
Permanent Spousal Support
Permanent spousal support is a bit of a misnomer, because it doesn’t mean, if you are eligible to receive it, that you’ll receive support forever. There are some conditions attached. Basically, you can receive permanent spousal support until (1) either you or your ex spouse dies, (2) you remarry, or (3) you live with someone in a relationship like marriage (basically, that you live with someone romantically, and not that you have a roommate) for a year or more.
The reason that permanent spousal support is restrictive in terms of the romantic relationships that can develop over time goes back to the historical roots of spousal support awards. In the time when women weren’t allowed to work outside the home, husbands took their wives from the protection of their fathers, and took on the responsibility to provide financially for her. In the event that a marriage didn’t work out, the husband was still financially responsible for the wife. If she remarried, he was off the hook, because someone else took financial responsibility for her.
Even though the world has certainly changed (because women regularly work outside the home, and spousal support can also be paid to a husband), the philosophy behind an award of spousal support hasn’t changed at all. A spouse can be financially responsible for another spouse after a marriage ends, because the decisions made during the marriage may provide more financial challenges post divorce for one spouse than the other. The higher earning spouse spouse stops having responsibility for the financial situation of the lesser earning spouse, though, once the lesser earning spouse remarries—or lives with someone. Why the restriction on people living together? Well, for a couple of reasons: (1) because the court saw a bunch of cases where people were avoiding getting married just to avoid giving up their spousal support award, and (2) people who live together tend to share expenses. Okay, so maybe it’s not quite the same as a marriage (when a relationship ends, you don’t have a share of the assets earned during the relationship), but the cooperation between cohabitating couples approximates marriage closely enough, at least in terms of the ability to share expenses, that the court has found that spousal support must terminate at that point.
So, could you live with someone for six months and then move out?
Theoretically, yes. But I’ll bet that, if you do, your ex husband will find out, he’ll take you to court, and then you’ll have to litigate on the issue of whether you’ve cohabitated for long enough to disqualify you for spousal support. Could you prove it? Probably. But it would take time and cost money (particularly if you chose to hire an attorney to help you prove your case) to do it, and it’s a risk all the same. Is it worth the risk and trouble? In my opinion, no. Should you get an award of permanent spousal support and then later develop a romantic relationship, it’s far better to maintain separate households and have occasional overnight visits.
Permanent spousal support is usually in the form of a payment, which is made monthly. It can be the same number forever (or, at least, until one of those events happens that would terminate spousal support), or it can move upward or downward over time, as specified by your signed agreement or based on the judge’s decision.
Defined Duration Support/Periodic Spousal Support
Spousal support can also be received for a specific period of time. A common amount of time we see, both by agreement and by order of the judge, is half the length of the marriage, particularly if your marriage is a short or mid-length marriage (usually, less than 20 years). It doesn’t have to be half the length of the marriage, though—it can be ordered in any denomination at all. Five years, ten years, 2/3 of the marriage, or pretty much however you agree (or the judge orders) to set it up, it doesn’t matter.
Again, normally, spousal support payments that are set up for a specific period of time are paid monthly (but they could also be paid weekly, annually, or however you’d like). You can receive an amount that stays the same forever (and, by forever, I just mean for as long as you’re receiving support payments), or it can go up or down over time.
Sometimes people like to change the amounts that they receive, so that they can accomplish some specific goal. Say you’re worried about paying the bills initially, but you plan to go back to work, so you anticipate that your financial needs will decrease over time. You might want to stagger your award of spousal support, so that you receive more in the first two or three years, and then it decreases over the remaining years of your support award.
Rehabilitative Spousal Support
You can also set up your spousal support award so that it’s designed to help you accomplish a specific goal. If you dropped out of college to get married and now you’d like to finish your degree (thereby increasing your prospects to earn money on your own, without support from your ex husband), you can ask for rehabilitative support. Unlike regular spousal support awards, rehabilitative spousal support is designed to help put you back on your feet, and put you in as strong an economic position as possible. You can negotiate it with your husband so that it helps you get a degree, technical training, or even renew a license or professional certification that may have lapsed during your marriage.
Many husbands prefer rehabilitative support because they feel like they’re providing their wives with the ability to earn money on their own, so it’s often easier to negotiate than other awards of support. It can look a lot like other spousal support awards—as in, you receive a certain amount of money each month for a specific period of time. Alternatively, an agreement that provides for rehabilitative spousal support could just say that your ex husband will pay for tuition and books each semester, for a certain number of semesters, or for a certain amount of years (like 4, if your goal is to earn a bachelor’s degree).
Judges sometimes award rehabilitative spousal support, too, but with one condition. While you can negotiate whatever you want in a signed separation agreement, most judges won’t call it rehabilitative support if the training you want to get won’t increase your earning potential. If you’ve already gotten professional training to be a medical transcriptionist, for example, and you could earn $35,000 a year, the judge probably won’t allow you to go back to school to become a hairdresser, if you can’t provide serious evidence that this additional training is going to provide some kind of measurable economic benefit. The education or training you propose should be above and beyond any training you already have and provide you with enhanced earning capacity.
Rehabilitative support is a great way to talk to your soon to be ex about support, because the emphasis is on providing you with the tools, training, and experience you need to provide for yourself.
Lump Sum Spousal Support
Of course, there’s also no reason that the support you receive needs to be paid monthly, just because that’s the way it usually is. In some cases, although I admit it’s pretty rare, lump sum support is also a possibility.
Usually, a lump sum award of support is negotiated in a way that benefits both parties involved. The recipient spouse needs support right now, to buy a house or get back on her feet, and the paying spouse wants to get it over and done with, and not have a monthly payment hanging over his head. Attorneys usually try to determine what a normal award of spousal support would be under the circumstances. Say 5 years is half the length of the marriage, and $1,000 per month would be an appropriate award, based on both parties respective incomes—which would come out to a total of $60,000 paid over the term of the award. If he offered, instead, $50,000 up front, he could save $10,000 in payments over 5 years, and it gets his wife a lot of money up front, rather than receiving it in smaller amounts over a longer time.
This is particularly popular in marriages where the parties don’t have children, and just want a clean break. The money can be paid, and both parties can go their separate ways. He doesn’t have to write checks every month, and she doesn’t have to worry about him playing games while she waits to receive his check (which can, with some husbands, be a real pain).
What might a judge award?
Judges usually don’t get too creative with spousal support awards. They usually make an award that is permanent (or, again, permanent until death, remarriage, or cohabitation), in the case of a long term marriage; an award that is for a specific period of time; or an award that is rehabilitative in nature (but that still means that the recipient spouse gets a certain number of dollars per month).
Chances are, if you’re hoping for something elaborate and creative, you’ll be better off negotiating spousal support with your husband.
Is it modifiable? Or am I all set as far as spousal support goes, once I get the order or agreement in place?
It depends. Normally, spousal support that is decided by agreement is not modifiable. If, however, the agreement says that the award is modifiable, then it is. On the other hand, spousal support that the judge decides usually is modifiable.
What about taxes?
Spousal support is taxable to you, and tax deductible to your husband, so some of what you receive will have to go towards paying your taxes at the end of the year. It’s important to keep this in mind, so that you can set aside money throughout the year, rather than being surprised later with a bigger tax bill than you intended.
With spousal support, there are so many options, it’s overwhelming. But keep in mind that you do have some control over the type of spousal support award you receive, so it’s best to be proactive, think critically, and take some responsibility for coming up with an arrangement that takes your interests into account. For help figuring out what kind of spousal support might be best for you, give our office a call at (757) 425-5200.