Virginia Woman’s Guide to Spousal Support: Part 1

I get it. Spousal support is complicated. And not just that, but keeping everything else in mind that will matter during the course of your divorce is complicated. It’s scary, when you don’t know what’s going to happen to you or your children, and your finances are sort of tenuous at best.

If you’ve been either a stay at home mom, or a wife who has seriously cut back her employment for the benefit of the family, you’re not alone. And, maybe even more importantly, you’re not without value.
Spousal support is rooted in the idea that a person shouldn’t be financially crippled forever because of the decisions that two people made during a marriage simply because one partner earns less than the other. You didn’t decide on your own to have children and stay at home; you and your husband made that decision on purpose in an effort to provide your children with the background and support they needed to be successful at life. If you worked less so that you could be there to support the family, that was a mutual decision made out of a desire to do what was best for your husband, your children, and your home. Right? You didn’t do this alone!

If you’re thinking, “Well, he’s SAYING it was all my decision now!” you’re not alone in that, either. I can’t tell you how many husbands try to pull the “SHE decided to stay at home, I wanted her to get a job!” card now that the marriage is on the rocks and divorce is on the table. That argument generally isn’t successful. After all, he stayed in the marriage (sometimes, for decades!) after a decision for the wife to stay at home was reached. Surely, the court reasons, if he had an issue with it, he wouldn’t have just sat by for five, ten, or even twenty years just letting it happen?

Spousal support isn’t easy, though. It’s not at all like child support, which is just numbers plugged into a formula. Child support is really pretty simple. Spousal support…well, not so much. It’s fairly complicated, which is why I’ve written this three part article on everything you need to know about spousal support.

How is spousal support calculated in Virginia?

That’s a really good question! It’s also hard to answer. Child support has one guideline that is applied regardless of where in Virginia you’re from. Spousal support, on the other hand, varies widely across the state.

In the Hampton Roads area, we do not have a formula that is binding on our courts. Other areas – like Harrisonburg and Fairfax – do, and we often use those formulas to give us a rough idea of what the court might award. In my experience, the courts use those formulas, too – particularly the Fairfax guideline – but it isn’t guaranteed that you’ll receive support according to this formula. It’s just a suggestion, and one that the court can (and sometimes does) deviate wildly from.

Usually, what I do in a spousal support case, is calculate the guidelines first according to the Fairfax system. Then, I negotiate from there, to the extent that I can. Obviously, we start with a proposal that’s higher than what Fairfax provides, and we negotiate downwards from there are necessary. Usually we have an end goal (or at least a range) in mind.

If we go to court, we present evidence.

What factors does the court look at when deciding whether to order spousal support?

Need versus Ability to Pay

Lots of them! First of all, the court looks at need and ability to pay. You have to demonstrate that you have a need, and that he has an ability to pay.

Translation: He must earn significantly more than you.

How much more? It’s hard to say, since we’re not bound by any particular guideline calculation, but usually somewhere in the neighborhood of 30-40% more.

It’s easy to demonstrate that you have a need, but you’ve also got to be able to show that level of income disparity in order for the court to be willing to award you support. (And the same – if you’re hoping that your husband will just agree to it, you’d better believe his attorney is going to be looking at whether she thinks the court would award it.)

The statutory factors

There’s also the law to consider. In the Commonwealth of Virginia, we have factors that the court has to consider, so they do impact negotiations where spousal support is concerned as well. In case you haven’t read them yet, here they 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 and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce, as are necessary to consider the equities between the parties.

The duration of marriage

So, obviously, the length of your marriage matters, too! Generally speaking, the longer you’ve been married, the longer an award of spousal support may be appropriate in your case. Of course, a long term marriage doesn’t guarantee support; the other factors still have to support an award of support. But the longer a marriage the better, in terms of the duration of an award of spousal support.

For short or medium length marriages, we see support running from between half the length of the marriage to the length of the marriage, depending on how the factors and other facets of the case apply.
In longer marriages, permanent support is a possibility. Keep in mind, though, that permanent support isn’t permanent, like, forever and ever, do whatever you want. No, there are terminating factors that apply, and, you should also be aware, they apply to you (as the recipient of the support) more than they’ll apply to him (as the payer of support). Spousal support terminates (1) upon the death of either party (which is why we often ask that a life insurance policy be maintained in the spouse’s name for so long as there’s a spousal support obligation), (2) the remarriage of the recipient spouse, or (2) the cohabitation of the recipient spouse in a relationship analogous to marriage for a period of one year or more. So, yeah, there’s strings attached.

Stay tuned. On Wednesday, we’ll discuss spousal support in even more detail, covering adultery and it’s impact on spousal support, imputation of income, voluntary underemployment, modifiability, and tax consequences associated with support. Need help in the meantime? Give our office a call at 757-425-5200.