Spousal Support

Spousal support is designed to help offset the financial disparity between two parties. When one is a significantly higher wage earner, it’s not realistic to simply divorce the parties and send the two on their way. The second, the lesser earner, could not survive in many cases without some kind of support.

Spousal support is categorized as support, and it’s a different thing entirely than a property right under equitable distribution. Whether you are receiving your portion of the marital assets or even receiving a monthly distribution already under a retirement plan, that does not mean you are not also entitled to receive spousal support.

Spousal support is designed to recognize the contributions each spouse ultimately made to the marriage. “Contributions” to the marriage can be defined either as monetary or nonmonetary contributions. The monetary side is easy to understand, but many people – husbands and wives included – tend to downplay the non monetary contributions to the family, and the many ways that those contributions allowed the family to get financially to where it is at the time the parties start to consider divorce.

Even though one spouse has been earning the majority of the money, the other spouse (often the wife) has a valuable and significant role to play, without which the higher earning spouse (often the husband) likely would not have been able to be as successful.

There are a million examples of this in real life, but to take the most obvious example we’d start by looking at the stay at home mom. Even though she doesn’t have a “job” outside of the home, she wears a million different hats inside the home – she’s the one cooking, cleaning and grocery shopping; she’s the one washing, folding, and putting the laundry away; she’s packing school lunchboxes, loading and emptying the dishwasher; she’s making sure everyone has everything they need every day, for every activity, birthday party, and school field trip; she’s buying, cleaning, organizing, and packing school and sports uniforms; she’s meeting with pediatricians, therapists, coaches, and other professionals in the kid’s lives; and she’s doing it all (and then some, because of course this isn’t an exhaustive list) without a sick day, a vacation day, a quarterly bonus, health insurance, or retirement account contributions.

In addition to the stay at home moms, there are also the work from home moms, the part time moms, and the moms who took a lesser paying (but more flexible) job to be available for their children, who are doing all of those things plus finding consistent, reliable childcare, working, and taking care of their families.

Though husbands and fathers can, and often do, support their families through their own non monetary contributions, it seems to often be the case that the wives and mothers contributions far outpace them. Maybe it’s stereotypical to say so. Maybe, somewhere out there, there’s a magical unicorn husband who is pulling his weight every single day. But, then again, if he did, probably his wife would earn more money herself (which would mean that support might not be necessary) and they wouldn’t be considering divorce at all. Right? But no need to digress. You already know we represent women exclusively, and we can’t help but have an opinion on this kind of thing.

Determining “entitlement” to spousal support is much more difficult than determining entitlement to retirement or a marital asset, though. It involves a much more nuanced weighing of circumstances and its certainly not guaranteed.

It’s complicated!

The first part of the test is determining whether you have a need (which is easy) and whether he has an ability to pay (which is less easy).

We often use an income and expense sheet to demonstrate your need; basically, it’s a budget-style sheet that shows what income you need each month to survive. In many cases, when we fill these things out (which we often do for pendente lite hearings or in discovery) our client ends up with a negative number. A negative number indicates that you do not have enough coming in each month to cover your expenses.

Now, that doesn’t mean that you can make your expenses be whatever you want them to be. Probably, a lot of scrutiny will be applied to whatever you say is what you need. If you indicate that you spend what someone else believes is “too much” on any particular item, you may have to answer some questions about your spending. It’s probably not going to pass muster if you say you need $500 a month for personal grooming, or $1000 a month for shopping.

Some things ARE expensive – like groceries – and I find that judges and opposing counsel are often sort of out of touch with what those things cost, especially if your children have medical needs that require a particular diet. I don’t think you need to understate your actual expenses, even if someone casts some doubt on them at some point in the proceedings, but you should temper all the other categories with accuracy, then, too, to show that you’re not just a spendthrift across the board.

Be as accurate as possible, in other words.

Ultimately, though, he’ll have to earn significantly more than you. If he earns less than you or the same as you, no matter what your need, you will not be awarded spousal support.

If he earns only slightly more, you also probably won’t receive spousal support, no matter your need.

Spousal support is really only awarded in cases where there’s a significant disparity in the income, meaning that he earns 40-50% (or greater) more than you.

The court will also look at his income and expense sheet, too. He is allowed to say that he has expenses that will impact his ability to pay support, and that will be especially resonant with the judge if what he’s indicating that he has to pay is from marital debt. Still, he also won’t be able to say that his “entertainment” expenses are so high that he can’t pay support – he’ll have to be realistic in his estimates, too. But his expenses are a factor, just like yours are a factor.

These are definitely factors that allow a spouse’s non monetary contributions to shine through, so we consider them to be very helpful in making a wife’s case for spousal support.

The factors aren’t perfect, though – so you can’t expect something like “the standard of living established during the marriage” to be a guiding principle. In many cases, the standard of living established during the marriage is no longer possible for either spouse post-divorce. It’s more a statement that is designed to reflect the fact that the court will take this into consideration, not that the court expects both parties to be able to maintain that standard of living later on.

Whether we’re negotiating an award of spousal support or whether we’re litigating in front of the judge, we’ll want to focus on these factors and show how they support your argument for support.

If, for example, you’re disabled and unable to work, you’ve been out of the workforce for a number of years, you lack education and training necessary to secure a job in today’s market, you’ve been at home caring for a sick or disabled child or you’ve stayed at home to raise your young children, etc., these types of things will be things that the court reviews and considers. These factors are probably your friends, so it’s worth time to read, understand, and even consider specific examples of these things that support your case.

There is no statute on this point. At one point, there was a proposed law that went in front of the General Assembly, but it did not pass. Still, there are many judges, attorneys, and others who really consider the length of the marriage very strongly when it comes to an award of spousal support. It would probably be fair to say that, based on the length of your marriage, we have sort of preconceived notions for how long your award of spousal support might last.

Of course, these are really just that – preconceived notions. This is not to say that a short term marriage might receive something different than I’ve described here, or that a long term marriage might receive less. Spousal support is not a hard-and-fast area of law. There’s a lot of gray, there’s a lot of flexibility, and there’s a lot of room for individual factors to affect an ultimate determination. So, read on, but make sure to bear that in mind.

All of this is well and fine, but you should definitely also know that adultery is a bar to an award of permanent spousal support.

Though you may be able to support your argument for support in a number of different ways, if you’ve committed adultery, it could ultimately sink your case. So definitely beware!

Technically, adultery is when a person who has sex with someone who is not their spouse – the law does not differentiate between pre and post separation adultery. If you’ve already got a separation agreement in places that spells out your spousal support award (provided that you do not remarry or cohabitate in a relationship analogous to marriage for a period of one year or more), you’re in a safer space, but otherwise you should definitely refrain.

Spousal support cases raise all sorts of issues. We’ve talked about spousal support in cases where there’s adultery, but we also often get a lot of questions about what happens in cases where there’s abuse.

Though, in general, abuse doesn’t really affect spousal support – it’s more related to the factors and the finances of the parties, you’re not wrong to wonder. You won’t get more for pain and suffering, or even just receive more per month, because of the abuse you’ve suffered.

So, all of that discussion above was mostly to answer the question #1, which is just plain whether or not someone might expect to receive support at all.

The next question – the question of how much – is what we’ll discuss here. As far as the factors are concerned, really only the first (need versus ability to pay) is applicable here. How much you’ll receive is down to how different your incomes are. If there’s not enough difference between your incomes (meaning, we can’t satisfy the ‘ability to pay’ prong of the test), the question of spousal support can end here without going any further at all.

Ultimately, spousal support is calculated based on a formula, at least at the temporary level. We use the Fairfax guidelines to run the calculation.

As far as we are aware, there is not a reliable online calculator available for you to run this guideline. From time to time, different ones pop up, sometimes accurately and sometimes inaccurately. The best way to actually run a guideline calculation is to meet one-on-one with an experienced attorney who can run the guidelines for you.

On a temporary basis, the Fairfax guideline rules – or, at least, it rules much more than it did even just a year or two ago.

Your monthly income and his monthly income will go into this calculation. The number can vary dramatically, depending on how high or low those numbers are.

How long you’ll receive support is another question, too. As we’ve already discussed, the length of marriage has a lot to do with whether or not you’ll receive support and then, if so, how long you’ll receive it.

The duration of your marriage is going to be extremely important here, so bear that in mind. It’s not that you can’t get something different from either half the length of the marriage or permanent spousal support, but those principles do often guide negotiations so it’s best to be aware of them.

Even once you get an award of spousal support in place, whether it’s a ‘permanent’ award of support or whether it’s for a defined duration, there are still terminating factors that you should be aware of as well.

Permanent spousal support means that the award is designed to last for an indeterminate period. Permanent does not mean, though, that support will continue to be paid forever and ever, no matter what. In fact, in many cases where permanent support is a possibility, other issues come up – either one of the terminating factors is triggered, a vocational expert or imputation of income is involved, or the spousal support award is modified later because of a material change in circumstances. (Read on for more on these.)

An award of spousal support for a defined duration is one that is in place for a specific number of years, months, or payments. Keep in mind, though, that even these awards of support can be terminated if the statutory requirements are triggered or modified, in many cases, if there’s a material change in circumstances.

The statute includes specific terminating language in the event specific conditions occur.

When does an award of spousal support terminate?

1. Upon the death of either party.

This one’s easy. If either – or both – of you dies, the award of spousal support dies along with you.

If he predeceases you, you will no longer receive support after his death. If you predeceased him, he will no longer have to pay it – not even to your estate.

2. Upon the remarriage of the RECIPIENT spouse.

If you – the person receiving the spousal support – remarry, you’ll lose your spousal support.

If he remarries, it doesn’t impact support; he’ll still have to keep paying it.

3. Upon the cohabitation of the recipient spouse, in a relationship analogous to marriage, for a period of one year or more.

This one’s the trickiest. If you live with someone in a way that means that you depend on each other for paying the bills and derive support from each other, that could terminate your award of spousal support.

This applies most often – and most obviously – to romantic partners. You can’t live with someone in a relationship that’s a lot like a marriage, support each other financially, and expect to continue to draw on your spousal support award from your husband indefinitely.

It can, though, also apply to non-romantic partners. There was a case once where two single mothers lived together with both of their children. They shared a joint bank account, and shared childcare responsibilities, balancing their jobs against each other to ensure that there was always a mom at home. The court found that this was sufficient – since they derived so much support from each other, even using the joint account to pay for groceries and house-related repairs and expenses – to terminate one of the mom’s awards of spousal support.

Spousal support cases are hard because there aren’t a lot of hard and fast rules about how it is applied, and because the circumstances of each family can be so varied that it really defies predictability.

These days, the Fairfax guidelines apply for temporary awards of spousal support when the parties earn less than a combined $10,000 a month. For cases where the parties have monthly income that is higher, or where a final award of spousal support is ordered or an agreement is reached, the Fairfax guidelines don’t control. Still, since this change has come into effect, we’ve seen many more spousal support cases that begin and end with the Fairfax guidelines – still, no guarantees!

A big part of what makes these cases so hard is the fact that the case starts out with a disparity in income. One party is automatically better positioned to litigate the case than the other. The other party – the party who truly needs support awarded – is over a barrel from the beginning because of her reduced ability to fight against it to ensure that she receives what she should receive. It’s a really tricky situation to be in, for sure, and it requires planning ahead of time to ensure that wheels aren’t spinning (at her expense) for so long that she can’t financially withstand the case.

Another big change in the law – and a thing that ultimately makes spousal support cases harder – is the tax deductibility bit.

These days, spousal support awards are NOT taxable to the spouse receiving support or tax deductible to the spouse paying support.

On the surface, that sounds good. You won’t have to pay taxes on your support award! But, really, it creates a challenging dynamic. When you remove the only incentive – the only actual benefit – he had to pay support, you make him less likely to agree to it without a fight.

These days, spousal support is usually modifiable. You’ll want to look, first, to the specific language in either your separation agreement or your court order to see whether modification is contemplated. Most of the time, there is specific language there that controls modification, so you’ll be able to see exactly what applies in your case.

Most of the time, spousal support is modifiable if there has been a material change in circumstances – like the fact that he has retired. (But not just because he has quit or was fired!) Whether support is ordered by a judge or established by agreement, the award most commonly contains specific information about modification.

Spousal support is NOT modifiable as if it was established in a separation agreement entered before July 1, 2018 where the agreement is either silent on modifiability or specifically prohibits it.

Just because the factors seem to be in your favor does not mean that the court will just automatically grant an award of spousal support.

In fact, in many cases, there are experts involved. A vocational expert is used more and more often in spousal support cases to help determine whether the recipient spouse is capable of working.

A vocational expert will look at all the factors unique to the spouse in question – their work history, education, training, experience, and current physical and mental condition. Ultimately, the vocational expert will have an opinion about whether that person could work, and, if so, how much they could expect to earn.

The court absolutely cannot FORCE you to go back to work – but it can tip the scale a bit. Though, in general, it’s a good idea to at least look into finding work to see whether it could ultimately make life easier for you post divorce. Keep in mind that a job is not just a steady paycheck – it often includes access to benefits, retirement account contributions, and intangible benefits, like the satisfaction of earning your own money, that may make it more desirable than not working. Also, like with child support, you should run your guidelines every which way to make sure that you’re getting the maximum amount of benefit possible. Don’t assume that working will cut your spousal support award to the point that it’s not worth working; run the guidelines to be sure you have the information you need to make important decisions.

In the event that the vocational expert is able to argue that you could work, or that you could earn a certain amount of income, the court can choose to impute income to you. Imputation means, basically, to make you responsible for earning that amount of money, even if you choose not to.

So, when the judge runs the calculation in a case like this, he might also include the amount that the vocational expert suggests that the spouse could earn in the calculation – which effectively reduces the amount of spousal support that spouse could receive.

Of course, just because a vocational expert says something, that doesn’t mean it’s the truth. You could hire your own competing vocational expert, or offer extra evidence or testimony to refute the vocational expert’s opinion.

Imputation works for you, too. In a case where the higher earning spouse either quit, was fired (for cause), or became “voluntarily underemployed” in an effort to avoid paying support, imputation could also be an issue.

Again, a vocational expert could be involved, though there may also be additional evidence to be gathered in the course of regular discovery.

Spousal support cases are challenging, so the more you know, the better off you’ll be. If you haven’t already, it’s a good idea to sit down, one-on-one, with an attorney, and get an idea of what your entitlements might be.

Have more questions? We’re here to help!