Applicable state laws
In accordance with Virginia law, a judge must take certain factors into consideration when trying to decide whether to award spousal support or “alimony.” However, when it comes to related questions, such as how much to award and how long someone must provide this type of financial support, the courts have little guidance.
There is no such thing as ‘guaranteed alimony’ in Virginia:
Within this context, it is important to note that there is no such thing as guaranteed spousal support in Virginia. Instead, the determination as to whether someone receives alimony is made on a case-by-case basis.
The questions at the heart of the matter:
Regardless of the forum or method of resolution (IE: court or mediation) certain matters must be addressed. These are:
- Whether or not there will be alimony;
- If yes, the monthly amount of spousal support, how long spousal support payments will be required, and when the amount and duration can be modified.
Importance and use of the pendente lite spousal support calculation:
In Northern Virginia, alimony is often negotiated, at least in part, via the “Fairfax Temporary Spousal Support Formula.” Although it was initially created as a tool for judges to rapidly calculate spousal support at short hearings involving couples who are separated, but not yet divorced, many Northern Virginia divorce attorneys have found this formula also appears to influence support awards at final hearings.
The pendente lite formula, for a divorcing couple with minor children, follows:
The “presumptive amount” of an award of this type of spousal support and maintenance is the difference between 28% of paying spouse’s monthly gross income and 58% of the receiving spouse’s monthly gross income.
The pendent lite formula, for a divorcing couple with no minor children, follows:
If the couple does not have minor children in common, the “presumptive amount” of such an award is the difference between 30% of the paying spouse’s monthly gross income and 50% of the receiving spouse’s monthly gross income.
Duration of payments:
By law, Virginia courts can grant three different types of spousal support or “alimony.” These are periodic payments for an undefined duration; periodic payments for a defined duration; or a lump sum award. Depending on the unique circumstances of a case, the award may be based on any one type of support or a combination thereof.
The law also allows divorcing spouses to enter into spousal maintenance agreements based on one or more of these payment types on their own. An experienced divorce mediator can help you come to terms on a spousal maintenance agreement featuring different combinations of spousal support, payment methods, and varying durations of support.
A brief explanation of each type of spousal support follows.
- Periodic payments for an undefined duration – This is a sum paid at chosen intervals (e.g., monthly) for an indefinite period of time.
- Periodic payments for a defined duration–This is also provided from time to time in accordance with a schedule determined by the court or agreed to by the divorcing spouses. The key factor that differentiates it from periodic payments for an undefined duration is that there is a designated termination date or event.
- Lump sum –This type of alimonyis a fixed amount payable when a court awards it. It can be paid all at once or in installments.
Along with or in lieu of awarding spousal support, a court can confer a “reservation” of the right to seek spousal support in the future. This reservation generally lasts half the length of the marriage. This is a “rebuttable presumption,” meaning that the court will typically accept it unless convinced it should do otherwise.
Criteria that Virginia judges must take into account in making a determination of spousal support
Below you will find the criteria listed in §20-107.1 of the Virginia Code that must be considered when a court is making an award of spousal support. Though divorcing couples don’t have to go to such lengths when settling spousal support matters outside of court, it’s wise for them to be aware of these factors during negotiations.
- The obligations, needs and financial resources of each person, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
- The standard of living established during the marriage;
- The length of the marriage;
- Each person’s age and physical and mental condition, and any unique family circumstances;
- The extent to which the age, physical or mental condition or special circumstances of the divorcing couple’s child or children would necessitate that one of the divorcing adults refrain from seeking employment outside of the home;
- The contributions, monetary and nonmonetary, of each divorcing spouse to the family’s wellbeing;
- The property interests of both divorcing spouses – including real and personal, tangible and intangible;
- The provisions made with regard to the marital property under § 20-107.3;
- The earning capacity, including the skills, education and training of the divorcing spouses and the present employment opportunities for persons possessing such earning capacity;
- The opportunity for, ability of, and the time and costs involved for a divorcing spouse to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
- The decisions regarding employment, career, economics, education and parenting arrangements made by the spouses 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;
- The extent to which either divorcing spouse has contributed to the attainment of education, training, career position or profession of the other; and
- Such other factors, including the tax consequences to each divorcing spouse and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce, as needed to consider the equities between the parties.
When it comes to drafting a Property Settlement Agreement (PSA), it is crucial that there is no doubt as to whether an award of spousal support can be changed. If it is modifiable, relevant terms may be detailed, or the basic statutory language can be used.The latter stipulates:
The party seeking the modification is required to demonstrate to the court, by clear and convincing evidence, that there has been a material change in the circumstances of the parties, that was not reasonably in the contemplation of the parties when the award was made, or that an event, which the court anticipated would occur at some stage during the pendency of the award, and which was significant in the making of the award, did not, in fact, occur through no fault of the party seeking the modification.
You should be aware that Virginia courts must now view a payor reaching full retirement age (as specified by the Social Security Administration) as a material change in circumstances.
Alternatively, in mediation/mediated divorces, participants sometimes hash out very specific terms pertaining to modifiable alimony agreements. Unlike the broad, default statutory language, this allows them to craft their terms to match their unique circumstances.
If divorcing spouses want their spousal support terms to be non-modifiable by a court, except as set forth in their PSA, legally their PSA must have the following language:
The amount and duration of spousal support contained in this Agreement is not modifiable except as specifically set forth in this Agreement.
Termination Of Spousal Support:
In Virginia, certain circumstances result in the revocation of someone’s right to spousal support. These are:
- If the recipient remarries.
- Cohabitation of one year or more, by the recipient, with another person, in a relationship analogous to a marriage. However, courts will only act on this if the person paying the alimony can provide clear and convincing evidence that the recipient is engaged in such a relationship. Further, if the recipient can prove, by a preponderance of the evidence, that the termination of his or her spousal support will have dire ramifications, the spousal support may remain in effect.
- Death of either party.
What if the payor dies:
A way to protect a divorced spouse who receives spousal support and needs the alimony payments to meet financial obligations, is life insurance. Since July 2017, Virginia judges have been allowed to order that existing life insurance policies be maintained for the benefit of the recipient of spousal support as long as that spouse is already a named beneficiary on that policy.
In mediation, divorcing spouses may protect spousal support with life insurance currently in existence or with new policies.
Clearly, this is a complicated issue. If you are on the verge of getting divorced or are in the process of getting divorced and want to learn more about spousal support, contact us today.
Featured Image Credit: Dorothy Lonas