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Spousal Support

Spousal Support in Virginia

Going through a divorce is stressful. However, it can be even more stressful and daunting if you are financially dependent on your spouse. Sometimes a spouse may stay in an otherwise hostile marriage because he or she is financially dependent on the other spouse. Virginia law allows the courts to award spousal support to a dependent spouse. If you are a spouse seeking spousal support or you may be ordered to pay spousal support, this guide provides you the information you need to understand some of the main aspects of spousal support in Virginia.  

What is Spousal Support?

Spousal support are payments made by one spouse to the other spouse for his or her support and maintenance. The purpose of spousal support is to ensure that both spouses are able to meet their financial obligations after the divorce and maintain a lifestyle as close to the lifestyle during the marriage as possible.

Types of Spousal Support

Virginia law allows judges to award temporary (also referred to as pendente lite) spousal support while the case is pending with the court and post-divorce temporary or permanent spousal support.

Virginia Code § 20-103 provides that courts can award temporary spousal support while the case is pending conclusion of the case. The party seeking temporary spousal support must file a motion with the court and request such support.

Virginia Code § 20-107.1 gives courts the authority to award post-divorce spousal support. The court can award rehabilitative support or permanent support. Rehabilitative support is temporary, and it ends upon completion of the duration set by the court. Rehabilitative support is common in cases where one spouse leaves their job during the marriage to take care of the parties' minor children and the family. In this case, the court may award spousal support for a period long enough to allow the recipient spouse to obtain the education and/or job training necessary to get back to the job market, obtain employment and become financially independent. Alternatively, the court may award permanent spousal support, which is for an undefined duration. Permanent spousal support is mainly common in long marriages.   

How is Temporary Spousal Support Determined?

Temporary spousal support is calculated based on Virginia spousal support guidelines. Virginia Code § 16.1-278.17:1 provides the guidelines under which temporary spousal support is calculated. The amount of spousal support under the guidelines is the “presumptive” amount and the court must award the presumptive amount. However, the court can deviate from the presumptive amount if it finds “good cause”, including the current financial situation of the parties or the impact of any tax exemptions and credits.

Under The Tax Cuts and Job Act (TCJA) of 2017 (discussed in more detail under Are my Spousal Support Payments Deductible? section below), spousal support awards on or after January 1, 2019 are not tax deductible by the payor and are not taxable income to the payee. In response to this change by the TCJA, the Virginia legislature amended the temporary spousal support guidelines, effective July 1, 2020.

Effective July 1, 2020, the temporary spousal support guidelines are as follows:

  • Cases With Minor Children: 26% x Payor's gross monthly income – 58% x Payee's monthly gross income
  • Cases With No Minor Children: 27% x Payor's monthly gross income – 50% x Payee's monthly gross income

Prior to July 1, 2020, the temporary spousal support guidelines were as follows:

  • Cases With Minor Children: 28% x Payor's monthly gross income – 58% x Payee's monthly gross income
  • Cases With No Minor Children: 30% x Payor's monthly gross income – 50% x Payee's monthly gross income

To account for the change brought by the TCJA, the presumptive amount under the new formula is lower than the amount under the prior formula.

The spousal support guidelines are used in cases where the parties' combined monthly gross income does not exceed $10,000. In cases where the parties' combined monthly gross income does exceed $10,000, temporary spousal support is determined based on the factors under the Virginia Code § 20-107.1.

The spousal support guidelines under the Virginia Code § 16.1-278.17:1 initially applied only to cases in the Juvenile and Domestic Relations District Court. However, effective July 1, 2020, Virginia Code § 20-103 was amended to incorporate the temporary spousal support guidelines in circuit court cases as well, where suits for divorce, annulment, and separate maintenance are filed.

Temporary spousal support terminates when the court enters the final order concerning spousal support.

How is Final Spousal Support Determined?

The court is required to consider the factors under the Virginia Code § 20-107.1 when making a ruling as to the amount and duration of spousal support. Some of these factors include: income, financial resources, needs of the parties, the standard of living established during the marriage, the duration of the marriage, earning capacity of the parties, monetary and non-monetary contributions of each party to the well-being of the family, and decisions regarding employment, career, economics, education and parenting arrangements made by the parties 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 court also looks at the circumstances and factors, specifically any grounds for divorce, that contributed to the dissolution of the marriage. One important factor that the court also looks at is the needs of the payee and the ability to pay by the payor.

Under Virginia law no spousal support will be awarded to a spouse who committed adultery unless the court finds that denial of spousal support would constitute a manifest injustice. Manifest injustice is determined based on (1) the relative economic circumstances of the parties; and (2) the relative degree of fault of the parties during the marriage. For example, even if the husband proves that the wife committed adultery, the court may still award spousal support to the wife if the court finds that the husband earns significantly more than the wife and that during the marriage the husband's extreme and outrageous conduct had caused their marriage to deteriorate.

The court may award retroactive spousal support for the period the suit was pending with the court if no temporary spousal support order was in place. In addition, the court has the discretion to order the spousal support payments be made to the payor spouse in periodic payments, in a lump sum payment, or in a combination of the two.

Reservation of Spousal Support

Sometime the court may, in lieu of a spousal support award, or in addition to a spousal support award, reserve the right of one or both spouses to seek spousal support or additional spousal support in the future. Under the Virginia Code § 20-107.1, there is a rebuttable presumption that the reservation is for one half of the length of marriage.

Reservation of spousal support does not guarantee that spousal support will actually be awarded in the future. It simply provides the spouse the ability within the time frame reserved to file a request for spousal support based on a material change in circumstances since the entry of the order reserving spousal support (which is typically the final order of divorce).

Imputation of Income in Spousal Support Cases

Imputation of income means when the court makes the party against whom income is imputed responsible for earning a certain amount of income. Income can be imputed against the party requesting spousal support and against the party who may be ordered to pay spousal support. For example, if the husband either quits his job (voluntarily unemployed) or takes on a job earning significantly less than his prior income (voluntarily underemployed) so he doesn't have to pay a large amount of spousal support to his wife, the court may impute his prior income on him. Similarly, if considering the wife's education, skills, work experience, and the job market, she is able to earn an income but chooses not to work, the court may impute income on her. The parties may have to bring in experts to testify about the other party's earning potential.

Modification of Spousal Support

Effective July 1, 2018, the amount and duration of spousal support is modifiable unless the parties' agreement that was entered into after July 1, 2018 states that it is not modifiable. For agreements entered into prior to July 1, 2018, the amount and duration of spousal support is not modifiable if the agreement is silent as to modifiability.

The party seeking modification of spousal support amount or duration must show that there has been a material change in circumstances since the order setting the amount of spousal support. Once this is established, the court is required to consider the factors outlined under the Virginia Code Section 20-109 to determine whether the amount and/or duration of spousal support should be amended. The court can also review the factor for initial determination of spousal support under the Virginia code section 20-107.1.

If you are seeking spousal support or you may be ordered to pay spousal support, you should consult with an attorney. Contact us today to schedule a consultation.

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