Chapter 10

Spousal Support

In Virginia, spousal support is the term used to refer to alimony. Most of the questions below will be answered based upon the assumption that you and your spouse are unable to agree and the judge rules on the issue of spousal support. Realize that you and your spouse can agree upon any spousal support arrangement you wish. If you agree upon spousal support, then the judge will not hear evidence and will not make a spousal support ruling. Instead, the judge is required to accept the agreement reached by you and your spouse.

10.1 Which Gets Calculated First, Child Support or Spousal Support?

Spousal support.

10.2 How Will I Know if I am Eligible to Receive Spousal Support?

Adultery, desertion, or other fault on your part may make you ineligible for spousal support. Talk to your attorney about the law and the facts of your case. Review the spousal support statutory factors listed in the appendix. Those factors identify the evidence the judge would consider if you request spousal support in your divorce case.

10.3 What Information Should I Provide to My Attorney if I Want Spousal Support?

All information relevant to any fault in the marriage (adultery or desertion are examples), and relevant to the spousal support statutory factors listed in the appendix.

10.4 Is There a Formula Used to Determine Spousal Support in Virginia?

There is a formula, but it applies only for temporary spousal support in the juvenile courts. Otherwise, there is no formula.

10.5 How Would the Judge Decide How Much Spousal Support to Award in My Case?

The judge would consider all evidence presented by you and your spouse relevant to the spousal support statutory factors and then make a ruling. Because a formula is not used, the decision has an element of subjectivity, which makes predictions difficult.

10.6 How Is Spousal Support Paid?

The judge can order monthly support, and/or a lump sum payment.

10.7 If Spousal Support Is Awarded on a Monthly Basis, How Long Does It Continue?

The judge has the authority to award monthly support with or without an ending date.

10.8 If I am Ordered to Pay Spousal Support Monthly With No Ending Date, Is That Permanent?

Your spousal support would end upon your death, your ex-spouse’s death, her remarriage, or if you could prove that she has cohabited in a relationship analogous to marriage for at least one year. In addition, the support can be modified or terminated upon a material change in circumstances. For example, the support could be reduced if you suffered a significant reduction in income due to no fault of your own.

10.9 Can I Return to Court to Modify Spousal Support?

Yes, monthly support ordered by a judge may be modified if there has been a material change in circumstances. Modification is not allowed if you and your spouse agreed upon a specific spousal support arrangement that does not include modification as an option.

10.10 What Is a Material Change in Circumstance?

For purposes of modifying spousal support, a material change in circumstances is almost always a significant, unforeseen change in one or both of the parties’ earning capacity or expenses. A material change in circumstances has to be present for the judge to be able to modify spousal support.

10.11 Can I Reduce My Spousal Support Obligation by Changing to a Lower-Paying Job?

No, you cannot intentionally create a material change in circumstances to reduce your support. In any event, spousal support is based upon your earning capacity, even if you choose to work at a lower-paying job.

10.12 My Spouse Makes a Lot More Money Than I Do. Will I Be Awarded Spousal Support to Make Up the Difference in Our Income?

There is no requirement that spousal support be used to equalize incomes post-divorce. That is not the goal or purpose of spousal support.

10.13 My Spouse Makes a Lot More Money Than Is Reported on Our Tax Return. How Can I Prove My Spouse’s Real Income to Show He Can Afford to Pay Spousal Support?

You will need the help of your attorney and possibly also the help of an accountant. There are many ways to hide income. Your attorney can assist you in obtaining all relevant records, and in building the case to show the judge that your spouse’s real income is higher than his reported income.

10.14 I Want to Be Sure the Records on the Spousal Support I Pay Are Accurate, Especially for Tax Purposes. What’s the Best Way to Ensure This?

Don’t pay cash. Either write and send monthly checks with “spousal support” noted on the memo line or arrange for a monthly electronic transfer of the spousal support payments.

10.15 What Effect Does Spousal Support Have on My Taxes?

Unless you and your spouse agree otherwise, and subject to certain exceptions and limitations, spousal support is deductible to the party paying and taxable to the party receiving the support. For example, for a $500 per month spousal support obligation, the annual taxable income of the party paying the support is reduced by $6,000 and the annual taxable income of the party receiving the support is increased by $6,000.

10.16 Can I Continue to Collect Spousal Support if I Move to a Different State?

Yes, the court order providing for spousal support stays in effect even if you move from Virginia.

10.17 Does Remarriage Affect My Spousal Support?

Yes, remarriage terminates your spousal support under Virginia law. (There is an exception if you have a written agreement, incorporated in a court order, that specifically provides that spousal support continues after you remarry.)

10.18 Does the Death of My Former Spouse Affect My Spousal Support?

Yes, spousal support terminates upon your death or your ex-spouse’s death.

10.19 I Started an Affair Before My Spouse and I Separated. How Will That Impact My Claim for Spousal Support?

It is possible that your claim for spousal support will be barred by your adultery. Whether your spousal support claim is barred due to your adultery depends upon whether your spouse is also guilty of adultery or other fault, on how your financial situation compares with your spouse’s, and how your misbehavior compares with your spouse’s marital misbehavior.

10.20 Do I Have to Keep Paying Spousal Support if My Former Spouse Is Now Living With a New Significant Other?

If your spousal support is based upon an agreement, then it depends upon the terms of the agreement. If your spousal support obligation is based upon a ruling by the judge, then your obligation continues until you can prove that your ex- spouse has been living with another person for at least a year in a relationship analogous to marriage.

10.21 My Spouse and I Have Only Been Married for Four Years. How Will That Impact My Claim for Spousal Support?

The duration of the marriage is one of the spousal support statutory factors. Generally speaking, if spousal support is ordered, then it would typically be for a shorter duration than it would be for a longer marriage.

10.22 My Husband Says That He Is Going to Quit His Job So That He Does Not Have to Pay Me Spousal Support. Can He Do That?

His strategy would almost certainly be unsuccessful. As required by the spousal support statutory factors, the judge would consider not only his income, but also his earning capacity. The judge would likely impute income to your husband if he quit his job to avoid paying you support.

10.23 What Does It Mean to Impute Income?

If a spouse’s income is less than his or her earning capacity (that is, if he or she is unemployed or underemployed), the judge has the authority to consider his or her earning capacity in making the spousal support ruling. Income is imputed when the judge finds that a party has an earning capacity higher than his or her income, and bases the spousal support ruling on that earning capacity.

10.24 What Happens if My Former Spouse Does Not Pay His Spousal Support Obligation?

You have a range of enforcement options. You can contact the Division of Child Support Enforcement if your ex- spouse also owes you child support; you can file a show cause for contempt action to have the judge force payment under penalty of punishment, including jail; your ex-spouse can have his bank accounts and his tax refunds garnished; and he can lose his driver’s license.

10.25 If I am Awarded Spousal Support in My Divorce, Can This Obligation Be Discharged if My Former Spouse Files for Bankruptcy After Our Divorce?

No.

10.26 If I Have to Pay Monthly Spousal Support With No Ending Date, Does That Mean I Can Never Retire?

Retirement will not automatically terminate spousal support, but it is a material change of circumstances that will allow you to request that your spousal support obligation be reduced or terminated the spousal support obligation. It is always preferable to reach an advance agreement with your spouse regarding spousal support that takes retirement into account.

10.27 I Was Divorced Last Year and Did Not Request Spousal Support. Can I Go Back to Court Now and Get Spousal Support?

No, unless the divorce order contains a reservation of support.

10.28 What Is a Reservation of Spousal Support?

A reservation of spousal support is a sentence in the divorce order that reserves jurisdiction for the judge to make a spousal support ruling in the future. Without this sentence in the divorce order, spousal support cannot be ordered in the future. The reservation is for a specific period of time. Once that time has elapsed, the judge cannot order spousal support. Any party that is free of fault with regard to the marriage can request and receive a reservation of spousal support. The reservation is usually for one half the length of the marriage.