Spousal support is often one of the most important issues in a divorce case. Because this is such a complicated area of the law, the information below is not intended to be comprehensive. If you have questions about spousal support, please contact us.
How Can A Spouse Obtain Spousal Support?Spouses can agree on spousal support. Temporary spousal support can be obtained after separation but before a divorce starts from the Juvenile and Domestic Relations District Court. In the past, cases in the Juvenile Court proceeded quickly. Unfortunately, in recent years, as the court has become more crowded, it may take 3-6 months or more to obtain support from the Juvenile Court. Once a divorce action is filed, temporary spousal support can also be obtained from the Circuit Court. Finally, support can be awarded at a final divorce trial. Virginia courts are given the power to award spousal support by Virginia Code § 20-107.1
Effect of Fault on Spousal SupportAdultery is not a bar to temporary spousal support in the Juvenile and Domestic Relations District Court or in a pendente lite hearing in the Circuit Court. However, Virginia law prohibits an award of permanent spousal support in a divorce to a spouse who is guilty of one of the fault grounds for divorce listed in Virginia Code § 20-91(1). The most common of these fault grounds for divorce is adultery. If the guilty spouse has been involved with a person of the same gender, the grounds for divorce are "sodomy or buggery" outside the marriage.
Even if a spouse is guilty of adultery, the Code does allows judges to award spousal support if there is "clear and convincing evidence that a denial of support and maintenance would constitute a "manifest injustice", based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.
Proof of adultery must be "clear and convincing." If the evidence is close or merely subjective, the court cannot grant a divorce on the ground of adultery. Most adultery cases are proven by circumstantial evidence, which means that you have to establish that your spouse had the disposition and opportunity to commit adultery.
Some judges are reluctant to award spousal support to a spouse who has acted badly during the marriage. By law, the court is required to consider the "circumstances and factors" that contributed to the dissolution of the marriage, including the factors mentioned in Virginia Code § 20-91(3) (conviction of a felony) and § 20-91(6) (cruelty, causing reasonable apprehension of bodily hurt, or willful desertion).
Types of Spousal SupportSpousal support can be paid for a limited period of time, for an unlimited period of time, or in a lump sum. Typically, if a marriage lasted only a few years, spousal support will only be ordered for a short period of time, and if a marriage lasted for many years, spousal support will be ordered for a long period of time or indefinitely.
What Factors are Considered When Determining Spousal Support?Virginia Code § 20-107.1 requires judges to examine the following factors when making an award of spousal support in a divorce:
- The obligations, needs and financial resources of the parties, 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 duration of the marriage;
- The age and physical and mental condition of the parties and any special circumstances of the family;
- The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
- The contributions, monetary and nonmonetary, of each party to the well-being of the family;
- The property interests of the parties, both 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 parties and the present employment opportunities for persons possessing such earning capacity;
- The opportunity for, ability of, and the time and costs involved for a party 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 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 extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
- Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
How Long is Spousal Support Awarded?After spouses are separated, the Juvenile and Domestic Relations District Court has the power to award spousal support on a temporary basis. These awards generally only last until the divorce is finalized. Once a divorce action is filed, the Circuit Court has the power to award spousal support on a temporary basis through the date of the divorce. After the divorce, the length of time spousal support can be awarded is entirely up to the discretion of the trial judge. Each judge has a different approach, and the length of support is often determined by a multitude of factors.
Can Support be Modified or Terminated?If the spouses have entered into a separation or property settlement agreement, modification and termination of support will likely be governed by the terms of the agreement. As a result, it is vitally important that the agreement is carefully drafted. If support is decided by a divorce court, either spouse should be able to come back to court later to ask that the support be raised or lowered or taken away entirely if there is a change in circumstances since the time the court ordered the spousal support. Support awarded by a court also typically ends automatically if either spouse dies, if the spouse receiving support lives with someone for a year in a relationship analogous to marriage, or if the spouse receiving support remarries.
What is Imputed Income?Often, one spouse will argue that the other spouse should be working (if he or she is unemployed), or if already working, should be earning more. The technical terms used are "voluntarily unemployed" and "voluntarily underemployed". Typically, a vocational expert will be required to testify as to what jobs are available and that the other spouse would likely be hired for those jobs.
Predicting the Award of Spousal SupportBefore a divorce case starts, it may be possible for one spouse to obtain a temporary award of spousal support from the Juvenile and Domestic Relations District Court. For these temporary awards, Virginia law requires the amount to be calculated using a formula set forth in Virginia Code § 16.1-278.17:1.
Unlike temporary support, the amount of spousal support that may be awarded in the divorce is very hard to predict. Every judge uses a different approach. Because the amount of spousal support is so hard to predict, many divorcing couples choose to settle this issue before trial.
Contact UsLawyers at Davidson & Kitzmann, PLC handle hundreds of family law cases every year. Many of the cases are in the courts of Charlottesville and Albemarle County, but we routinely handle cases in other cities and counties, including Greene, Fluvanna, Orange, Louisa, Culpeper, Waynesboro, Staunton, Nelson, Augusta, and northern Virginia. We manage every case with a personal approach to the unique needs of each client. Experience has given us an understanding of the questions and issues you face. If you have questions about spousal support or other family law issues, and you seek a firm that is experienced, professional, and dedicated to your best interests, call us at (434) 972-9600 or click contact us.
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