Understanding spousal support in Virginia

In Virginia, spousal support, also known as alimony, is awarded based on 13 factors listed in Virginia Code Section 20-107.1. However, many of these factors blend into one another and the court tends to only look at a few key issues.

1. Duration of the Marriage: There are a few rules of thumb here.
   1. First, it’s pretty rare to have any spousal support awarded in cases where the parties were married less than five years.
   2. Second, if the marriage was around twenty years or more, the court will often order spousal support indefinitely (i.e. with no end date).
   3. Third, if the length of marriage is somewhere in the middle, then generally support will be awarded for half of the length of the marriage.
2. Financial Need vs. Ability to pay: The court considers each spouse’s financial situation, including income, assets, and liabilities.
   1. So, if the higher earner has moved on and is living with a new rich partner, they may be able to pay a bit more support.
   2. This factor does take into account costs of living, income from other sources etc.
3. Standard of Living: While maintaining the standard of living is impossible with two households the court will look at what the standard of living was during the marriage and try to ensure that neither party deviates away too far from it.
   1. If you’re hoping to receive spousal support to maintain your standard of living, that’s not going to happen. However, the court’s won’t find it equitable for your spouse, who is a significantly higher earner, to continue the standard of living while you remain destitute.
4. Earning Capacity: The court evaluates each spouse’s ability to earn income, considering factors such as education, job skills, and health.
   1. So, if you’ve recently taken time away from work to stay home with the children but you can easily enter back into the workforce, you probably are not going to get a lot of spousal support for an extended duration.
5. Contributions to the marriage: Contributions as a homemaker or in supporting the other spouse’s career are considered.
   1. However, if your contributions to the marriage were minimal (i.e. there were no children born of the marriage) this factor will weigh against you.
6. Age and Health: The age and health of each spouse may impact their ability to work and earn income.
   1. This factor cuts both ways. If you’re unable to seek employment due to your age and health, the court will heavily weigh this factor in your favor.
   2. But if your spouse has been the breadwinner for the entirety of the marriage but is expecting to retire soon you may not get spousal support for an extended period of time.
7. Other Factors: Any other relevant factors the court deems necessary.
   1. Generally, the court is looking here at who is taking on the marital debt, was either party awarded income generating assets as part of the divorce, did either party abuse the other physically? Did either party desert the marriage or commit adultery? Things like that.

Spousal support can be awarded on a temporary or permanent basis. Temporary support is typically awarded during divorce proceedings and is meant to provide financial assistance until a final support order is issued (this is called “pendente lite” hearing and we’ll have a separate blog post of that). Spousal support may also be awarded “permanently” at the end of divorce. Permanently is really a bad term for it as most of the time the court will only order payments for a certain period of time.

Further, under Virginia law, any court order of spousal support must be modifiable if one of the following occurs:

• A material change in circumstances
• Either party dies
• The receiver remarriages
• The receive cohabitates with another individual in a relationship analogous to marriage for 12 months.

The only way to get around the above is for the parties to explicitly contract around those terms which is rare.

Finally, spousal support is no longer tax deductible, and the receiver does not pay taxes on the spousal support gained.

If you’re facing a situation where spousal support may be a factor, please reach out to us at Bristle Schulze for a consultation. Call 703-278-2027.