WHAT IS VIRGINIA SPOUSAL SUPPORT OR ALIMONY?
Virginia spousal support or alimony is a payment from one spouse to the other during the pendency of the divorce and possibly after the Final Order of Divorce has been entered. Spousal support is not guaranteed in any divorce case in Virginia but must be evaluated on a case-by-case basis.
Spousal support issues in the Commonwealth of Virginia arise when parties have been legally married for a significant amount of time and there is a substantial difference between the parties’ incomes. In most of these cases, the determination of the amount of spousal support payments and the duration of these payments is challenging for both parties. It is especially important to obtain knowledgeable, experienced counsel who can provide a range of possible support received or paid.
Spousal support may be ordered or agreed to during the divorce and/or after the divorce. Spousal support may be for a definite or limited period of time or an indefinite duration. Even in indefinite duration spousal support cases, spousal support may be terminated or reduced upon a material change of circumstances like retirement, an income reduction for the payor spouse or an increase for the supported spouse. Unlike child support which has guideline determinations provided by the Virginia Code, there are no guidelines for spousal support after the divorce, therefore; the determination of a spousal support amount and duration can be one of the most complex points of a divorce both during negotiations, mediation, and at trial.
CAN I GET SPOUSAL SUPPORT IN VIRGINIA?
It depends. Typically, spousal support is at issue when the parties have been married for a substantial length of time and there is a significant difference in incomes (i.e. one spouse makes double the amount of income as the other spouse). Spousal support may be ordered if someone has been out of the workforce, working part-time, or gave up opportunities in order to support the other spouse’s career. Spousal support may also be ordered if a spouse is disabled or otherwise unable to work.
HOW DO I OBTAIN ALIMONY IN VIRGINIA?
Alimony or spousal support must either be agreed upon or ordered by the court. Support may be ordered pendente lite which is on a temporary basis while the divorce is pending. Temporary or pendente lite spousal support is based on guidelines which use the parties’ gross monthly income and whether they have children to determine a presumptive amount. These guidelines are similar to a Virginia (VA) spousal support calculator. Then, the court considers the parties’ current financial circumstances. Pendente lite spousal support not determinative of a final decision regarding alimony. You may receive more or less than the final determination as the Court may look at different aspects at the final hearing or trial such as imputation of income. A final alimony determination will be reached either after agreement through negotiations or through trial. The agreement or order will specify the amount of the support as well as the term either for a specific length of time or for an indefinite duration.
HOW IS ALIMONY PAID IN VIRGINIA?
Spousal support or alimony in Virginia can be paid either as a lump sum or through periodic payments. Periodic support may be paid monthly on a specific date or split into payments based upon the payor spouse’s pay whether it be biweekly, bimonthly, or weekly. It can be paid from one spouse to the other directly through check, money order, money transfer app like Zelle, Venmo, or Cash App or direct transfer from bank account or through an income deduction order wherein the money is taken directly from the payor’s pay through their payroll.
WHAT FACTORS ARE CONSIDERED IN AN AWARD OF SPOUSAL SUPPORT IN VIRGINIA?
When a party seeks spousal support, the courts will determine whether the seeking party should receive payments. The court must look at many factors found at Va. Code Ann. § 20-107.1, including the parties’ incomes, length of the marriage, the standard of living during the marriage, the financial resources of the parties, the parties’ ages and health, earning capacity, education, ability to pay, and the monetary and non-monetary contributions of each spouse to the well-being of the family. The final factor that must be considered includes “Such other factors…necessary to consider the equities between the parties.” The court will also look into the circumstances that led to the dissolution of marriage including any grounds for divorce. Usually, adultery from one spouse will bar him or her from receiving alimony. Even in a clear case of adultery, spousal support may still be awarded in a case of manifest injustice, but the court will consider each parties’ economic circumstances and respective degrees of fault.
When the petitioning party has not been barred from receiving spousal support, the court will determine the amount of support and the duration of support using the aforementioned factors found in Va. Code Ann. § 20-107.1. Additional factors that may be considered include the parties’ parenting arrangements, special needs of any children, and the amount of time the petitioning party has been absent from the workforce. Spousal support is discretionary and not guaranteed in any case.
HOW CAN VOLUNTARY UNDEREMPLOYMENT OR UNEMPLOYMENT AFFECT MY CASE?
Voluntary underemployment or unemployment can drastically affect your case. In Virginia, courts look at all of the facts and circumstances surrounding a change in employment to determine whether a person is voluntarily unemployed or underemployed. A payor person may seek lower paying employment to avoid paying higher amounts of spousal support payments. The Court in those cases will look at the reasonable efforts of that spouse to keep or find employment. A receiving spouse may remain unemployed or underemployed. The Court in those cases will look at the reasonable efforts and surrounding circumstances with regards to the receiving spouses’ income. The court may impute an income to the party seeking support or the party paying support. Based on current law, the burden is on the party seeking support to demonstrate that the other party is voluntarily foregoing gainful employment. The party paying support also bears the burden to prove that the other party could be earning higher income.
WHAT IS SEPARATE MAINTENANCE?
Under Virginia law, married parties who are separated from their spouses can seek “separate maintenance”. This form of support is different from the more common spousal support. Separate maintenance may be an option for those who cannot or do not want to file for divorce.
There are four elements for a valid case for separate maintenance: The spouse who is the paying spouse will need to be at fault; The party petitioning for support will need to be without fault; Both parties must be living separately; and Both parties are still married.
Separate maintenance may be a favored option for those who do not have sufficient grounds to file for a divorce or do not want to file for divorce because of religious beliefs but still need economic support from their spouse.
CAN SPOUSAL SUPPORT IN VIRGINIA BE MODIFIED?
It depends. If the amount or term is agreed upon in your Property Settlement Agreement, the agreement will dictate whether or not the amount or duration is modifiable. However, if the amount is awarded by a court, the spousal support may be modifiable when there is a material change in circumstances from when spousal support was awarded, or that an anticipated event, which was significant in the award, did not occur at no fault of the person seeking the adjustment. Va. Code Ann. § 20-109(B).
Additionally, the Va. Code contemplates a modification of spousal support when either party reaches the full age of retirement or retires.
Spousal support will not be modified if the following circumstances apply when reached by agreement: The agreement between the parties was entered into before July 1st, 2018 and this agreement does not state that the support is modifiable; or For agreements entered after the 1st of July, 2018, the agreement is specific in its language that the support cannot be modified.
In order for spousal support to be modifiable, a material change must have occurred in the life circumstances since the date of the court order that established the initial obligation. For the most part, the change must have happened involuntarily. For instance, the paying party cannot leave his or her employment voluntarily or retire early in order to have the amount of support reduced. Paying parties who are fired for cause may not be allowed to modify their support obligations and may have to continue to make spousal support payments.
WHAT ARE THE TAX IMPLICATIONS OF SPOUSAL SUPPORT?
Spousal support awarded on or after January 1, 2019 is not taxable as income to the recipient and not tax-deductible by the paying spouse. Any awards given prior to January 1, 2019 are taxable to the recipient and tax-deductible by the paying spouse. Modifications of awards made prior to January 1, 2019 may alter the tax implications.
WHAT HAPPENS IN CASES OF ADULTERY IN VIRGINIA?
A judge in Virginia may deny spousal support to the requesting spouse if adultery is proven and denying spousal support to the requesting spouse would not be a manifest injustice. It is important to note that proving adultery is difficult in Virginia due to the high bar that the court sets for the evidence necessary to do so.
FAIRFAX AND MANASSAS, VA SPOUSAL SUPPORT/ALIMONY LAWYERS
The lawyers at NOVA Legal Professionals have many years of experience representing spouses seeking or contesting spousal support payments. The firm can assist you in analyzing the facts of your case, negotiating, mediating, or presenting the best arguments at trial related to a spousal support award. Read more about how we have helped our clients here.
If you want to speak with one of our attorneys to discuss your case, reach out to us at either our Manassas or Fairfax locations to schedule. Our divorce attorneys in Virginia work with clients throughout Northern Virginia including Prince William, Loudoun, Fauquier, and Fairfax County.