On Monday we talked about spousal support, including how it’s calculated, and what factors affect whether it’ll be awarded.

Today, we’re going to go into even more detail, discussing adultery and it’s impact on spousal support, imputation of income, voluntary underemployment, modifiability, and tax consequences associated with support.

For more information on these topics, let’s read on.

How does adultery impact spousal support?

Technically, under the law, if you’ve committed adultery, you don’t qualify for spousal support. Of course, that’s assuming that support would’ve been awarded anyway; for that part of the analysis, you’d have to review the factors we discussed above.

In order to override this, if you’ve committed adultery, you’d have to show that manifest injustice would result if the court denied you support – a rocky and difficult road to hoe, for sure. Can you do it? It’s possible, but it’d be time consuming and expensive.

Remember, too.. If your case is a spousal support case, you’re kind of already at a disadvantage, because it means automatically that your husband earns more. That means he has more money to spend on lawyers than you do, and, if the case ends up being contentious, you’ll need to plan carefully and strategically to avoid messy money pits – like manifest injustice arguments.

A better idea is to either (1) refrain from having an affair, at least until there’s an agreement in place that governs the terms of your divorce, or (2) if it’s already too late, never mention your affair to anybody, ever, under any circumstances, and hope to goodness he doesn’t find out about it. Not even your mother or your sister or your therapist. No one. Seriously. Keep your mouth shut.

Voluntary Underemployment and Imputation of Income

Can the court force you to go back to work? Well, when you look at a spousal support case, the first question is always this: What does the agreement (or court order) say? The language there will govern a lot of these types of questions, and can give really good insight into your case.

So, if what I’m about to say contradicts anything in your agreement or court order, you’re going to have to follow your agreement or court order. Keep in mind that I’m speaking in generalities here, and not to anyone’s particular circumstances.

The court can’t MAKE you go back to work. You’re an adult, you make your own decisions, and the court can’t infringe on your liberty that way.

That said, though, the court CAN impute income to you. That means, essentially, making you responsible for income at a certain level – regardless of whether or not you actually go out and earn it.
We see this happening more and more often these days, and especially in cases where there’s a possibility of permanent support. The other side will often hire an expert who can assess your employability, what you might be able to earn, and even list for the court the kind of jobs you would be capable, based on your age, physical condition, experience, education, training, etc., of doing. The judge then can infer from that information that you’re capable of earning at a certain level, and include that level of income in the support calculation. Whether you actually do it or not…well, that’s up to you.

Imputation can work in reverse, too. If, say, your husband is threatening that he’ll quit his job so that he doesn’t have to pay you support… well, the court won’t like that. If he quits, or if he suddenly accepts a job that pays less than what he has been earning, you can make an argument for voluntary underemployment, and the court can also impute income to him. (Though, honestly, I’ve never had a case where a husband actually DID quit, though many have threatened.)

Spousal Support by Court Order versus Spousal Support by Agreement

Can spousal support be modified? Yes! The law on that point recently changed, and it’s modifiable regardless of whether spousal support is ordered by the court or agreed to in an agreement.

It’s modifiable both upwards and downwards, based on a material change in circumstances. Is this good or bad? Well, it doesn’t matter, because it is, at this point; but, really, I’d have to say that it depends on the case. If he gets a raise, it’s good. If it retires too quickly, it could be bad – though, then, of course, you’d probably get your portion of the retirement (assuming, of course, that your marriage overlapped the period of time during which he was employed and earning that retirement).

Is spousal support taxable?

The million dollar question. Until December 31, 2018, spousal support is taxable to the person receiving it, and tax deductible to the person paying it. After January 1, 2019, unless and until the law changes, spousal support is neither taxable nor tax deductible.

At first blush, that might sound like good news. It’s probably not, though. After all, spousal support is a sort of hard sell, even in the best cases. Tax deductibility was the one advantage that paying spousal support had going for it. Without the tax deductibility portion, husbands will probably be considerably less willing to pay support.

I think this will likely result in more and more people being unwilling to agree on the issue of spousal support. Especially since, as I mentioned before, the husband is the primary wage earner in a spousal support case (at least, one like I’m discussing here), so he can outspend his wife in attorney’s fees. It’s kind of a scary proposition, especially for the lesser earning spouse who is depending on receiving spousal support.

What will happen? It’s hard to say. The law hasn’t even taken effect yet because it’s not January 1st, so I haven’t seen any real life cases impacted by this new legislation.

Only time will tell!

But wait! There’s more! (I’ve always wanted to say that!) On Friday, we’ll talk more about spousal support. (There’s more?!) There’s still more we need to cover, including exactly how a spousal support award can be entered. Stay tuned for more!

For more information about spousal support, or to schedule a one on one appointment with one of our licensed and experienced Virginia attorneys, give our office a call at 757-425-5200.