When spousal support is an issue (and it often is), there are three possible issues: first, whether spousal support should be awarded at all; second, if so, then how long should the award of spousal support be expected to continue; and, third, if so, how much spousal support should the recipient spouse expect to receive.
When attorneys and judges consider spousal support, and all three of the issues affecting spousal support, they look at the spousal support factors from the statute.
In Hampton Roads, there are no guideline figures for spousal support awards. It’s not at all like child support. Though there are formulas for calculating spousal support (and attorneys and judges in Virginia Beach, Newport News, Norfolk, Chesapeake, York County, and the Eastern Shore use them), they aren’t binding on us. We use the formulas to inform us, but they aren’t the be-all end-all.
Most everything is determined based on how the spousal support factors are analyzed. Of course, how the spousal support factors are analyzed depends on the type of case involved. In a separation agreement case, the attorneys negotiate back and forth, using the spousal support factors as their support, to reach an agreement that reflects the best interests of the parties. In a litigated case, on the other hand, each attorney makes an argument in front of the judge based on the spousal support factors, but, ultimately, the decision rests in the judge’s hands. Either way, though the methodology is a little bit different, the rationale for the decision is always based on the spousal support factors, as set forth by the Virginia Code.
So, what are the Virginia spousal support factors?
There are thirteen spousal support factors. Today, we’ll go into each one in detail, describing what the judge is looking for—and what you’ll want to be able to show to demonstrate that you deserve to receive spousal support (or, conversely, what you’ll have to refute to show that your husband doesn’t deserve to receive it).
The thirteen Virginia spousal support 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;
First and foremost, the court will look at whether one party has a need and the other party has an ability to pay.
One party must earn substantially more than the other in order for spousal support to be awarded. It’s generally pretty easy to establish that the party earning less has a need; even in a situation where both parties are very high wage earners, the parties have a lifestyle that reflects a certain standard of living.
How much must the disparity be? It’s hard to pinpoint, exactly, except that the difference must be substantial. If you earn the same, or roughly similar, incomes, it’s going to be difficult to argue that your spouse has an ability to pay you support.
2. The standard of living established during the marriage;
We already mentioned this, briefly, but the court is also going to look at how you lived during your marriage. It’s not so much that the court thinks that you ought to be able to maintain exactly the same standard of living after divorce (because, after all, that would be virtually impossible); it’s more that the judge will take into account your obligations moving forward. Obviously, people with higher incomes often have bigger expenses—they owe more in mortgage payments, for example. That standard of living—the bigger mortgage payment, among other things—is a factor that affects whether spousal support will be awarded and, if so, how much.
That’s not so say, of course, that the judge would order that you receive spousal support just because you have a humongous mortgage; it needs to be roughly proportional to what the parties earned during the marriage. To the extent that it is possible, these things will play a role in the award of spousal support. Just having an outlandishly high mortgage, though, doesn’t necessarily qualify you for support.
3. The duration of the marriage;
Obviously, the length of the marriage has an impact on spousal support. No one thinks that someone who has only been married six months, no matter how the other factors look, deserves to be supported forever and ever—it’s just not realistic. The longer the marriage, the longer the possible award of support. Of course, it’s not automatic; like everything else, this is just one of many factors.
Awhile back, there was a proposed law that came up in front of the legislature. It didn’t pass, but, still, all these years later, it’s a proposed law that still informs the way judges and attorneys think about spousal support. The proposed law would have established a bright line rule regarding how long spousal support would be paid, based on the duration of the marriage.
Again, there is no bright line rule today, since the law didn’t pass—but, still, many of us think about spousal support in similar terms. According to the proposed law, in a marriage that lasted between 1 and 7 years, no spousal support would be awarded. In a marriage that lasted between 8 and 19 years, spousal support would be awarded for half the length of the marriage. In a marriage that lasted more than 20 years, spousal support could be awarded permanently. For more information on what might happen in your case based on how long you’ve been married, click on the blue links above.
Of course, that doesn’t mean that this is always the case. I’ve worked on cases where, after a 3 year marriage, spousal support was received, and I’ve worked on 30 year marriages where no spousal support was awarded. It all depends on the circumstances, but the duration of the marriage is a factor that matters when it comes to whether and how long spousal support might be received.
4. The age and physical and mental condition of the parties and any special circumstances of the family;
If one party is less able to care for him or herself, that makes them a more likely candidate to receive spousal support.
We’re not just talking about disability here, but any kind of mental illness, or other situation where a party might not be able to work full time and provide an independent income.
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;
The court will also look at the condition of the children. Is one child disabled, making it impossible for you to work outside the home? Do the rigors of providing care for a child (or more than one child) make it impossible for you to pursue other employment? Did you and your husband make a decision regarding the upbringing of the children (like, for example, that you’d prefer to homeschool) that you want to honor post divorce? These factors will play a role, too.
6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
Even if you didn’t work during the marriage, the court will look at what you did contribute to the family. This is a factor that really helps bolster the importance of stay at home moms (or moms who cut back their hours to support the family). Obviously, a job has monetary value for the family; but there are other things that a spouse can do to increase the value that is added to the family, both monetary and nonmonetary, that the court will consider when it comes to spousal support.
7. The property interests of the parties, both real and personal, tangible and intangible;
The court will also look at how everything else will be divided. Any separate property will be taken into consideration. Really, here, the court is looking at whether it is possible (or impossible) for either or both of you to stand on your own two feet without additional support.
Do you own a home? Do you receive an annuity? Is there a large inheritance? Even the things that can’t be divided in the final divorce can factor in, at least as it relates to your entitlement to spousal support. (Again, we’re back to the whole need and ability to pay thing.)
8. The provisions made with regard to the marital property under § 20-107.3;
Marital property, obviously, matters, too. What are you receiving in the divorce? Are there other property entitlements that you’re receiving that would mean that you probably shouldn’t also receive spousal support? Some husbands are willing to give their wives larger shares of other assets in order to convince them to waive spousal support. If you’ve received, for example, a larger share of the house (or, instead, the entire house), and your husband gives up or significantly reduces his interest in it, it might support an argument that you shouldn’t also receive spousal support (and vice versa, of course) . It all depends.
9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
Have you worked recently? What is your job experience like? Do you have a solid education? Do you have professional training or licenses to fall back on?
This is another factor designed to help aid stay at home moms or people without a strong work history. If you’ve got a great education and can go quickly back into the workforce, good for you! That’s great. But if, on the other hand, it’s less likely for you, the court will take that into account, too. For a sixty year old woman, for example, who hasn’t worked in the last forty years, it might be unreasonable to expect that she could re-enter the work force and do anything where she earns more than minimum wage. And, additionally, depending on her health, it might not be possible, anyway. The court looks at who you are and what you’re realistically capable of doing.
Not sure what you’re capable of doing? Sometimes an employment expert is involved who will assess the abilities of a party and make recommendations to the court regarding what they’re able to do (and what they might reasonably expect to earn).
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;
If you haven’t worked in awhile, is it possible that you could? Can you go back to school and get the education and training you need? Is it realistic? What steps would you have to take? What would the costs associated be?
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;
If you stayed at home, is it because the two of you made that decision? If you’ve stayed at home for any period of time, it’s likely that the court will see it that way. After all, if he had a problem with it, why would he continue to let you stay at home for 5, 10, or 15 years? He must have been at least somewhat complicit in the decision.
It’s normal that a husband will say, in retrospect, that he didn’t agree to let his wife stay home. (A convenient excuse!) But it’s pretty likely that if you’ve done it for awhile, the judge will look at it as a decision the two of you made together.
12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
Did you help your husband get to where he is in his career? That could help your argument, too. To the extent that you supported and helped him along the way, you may deserve to receive compensation for your support—after all, he wouldn’t be where he is now (and earning what he’s earning) without your help and support along the way.
13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
Did we miss anything? Factor number 13 is a catch-all, designed to give you room to add in anything that the court should be considering but isn’t.
The spousal support factors are pretty all encompassing, and definitely give you room to craft a solid argument. For more information about the spousal support factors, or to figure out whether you might receive it (and if so, how much and for how long) give our office a call at (757) 425-5200.