Virginia Spousal Support Myths vs. Reality

As always, before reading today's blog post, please review my disclaimer by clicking on the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Back in 2014, I did a blog post on the myths vs. the reality of child support law in Virginia.  It covered some of the most common misconceptions I routinely encountered regarding child support, and was fairly well received.  Nonetheless, I do find myself facing more and more often similar misconceptions regarding spousal support.  In today's blog post, I hope to similarly take on some of the most common of those misconceptions I encounter.  As with the child support post, the format of this post will be a presentation of a common spousal support myth I encounter, a 1-2 sentence statement of the "reality" then a longer explanation.

Myth:  I can figure out what spousal support should be based on a formula.

Reality:  There is no accepted formula in Virginia for calculating spousal support, and you would rely on one at your own peril.

Unlike child support, spousal support does not have guidelines.  Well, that's not completely true - in J&DR spousal support cases, and in a few local jurisdictions for divorce cases, there are guidelines for setting spousal support pendente lite (temporary support awards that expire when the litigation ends), but there are no guidelines for a final award.  Instead, there are a list of factors the judge must consider, and then the judge must come up with a proper award from those factors.  Many judges won't even allow "guidelines" to be presented in a spousal support case.  As a result, if you've planned your case around "guidelines," you could be in trouble.

Myth:  I can change spousal support if there's been a "material change in circumstances."

Reality:  A material change of circumstances is sufficient to modify spousal support only if you are subject to an indefinite spousal support award, or you are within the time period of a reservation of spousal support.  Otherwise, the situation is complicated.

Child Support, custody, and visitation can all be changed with a material change in circumstances, so it's not surprising that most people think spousal support is the same way.  However, as the post I just linked to points out, spousal support is much more complicated.

It's worth noting that once upon a time in Virginia, spousal support could not be modified.  Once it was ordered it was in effect for life and could not be changed unless either party died or the person receiving the support re-married.  In around the 1920's, the General Assembly stepped in and changed this, but because the "common law" rule is that spousal support can never be modified, the modification rules come purely from statutes.

So, the first question with spousal support is whether or not it can be modified.  If spousal support was set by a settlement agreement or contract, it can only be modified if the agreement itself specifically states when and how support can be modified.  If the agreement is silent as to modification, then it cannot be modified.  If the agreement says it can be modified, then the rules set in the agreement dictate how it is modified.

If spousal support has been set by a court, then it can be modified unless 1) the court ordered defined duration spousal support and the support has now ended, or 2) the court declined to award spousal support at all, and (and this "and" applies to both 1 and 2) the court either A) did not order that there be what's called a "reservation" of spousal support, or B) the court did order a reservation of spousal support, but the reservation time has now passed.  So, unless you have either 1 or 2 and either A or B, court ordered spousal support can always be modified.

So, the next step is how is court ordered support modified?  Well, if the court ordered indefinite spousal support (as in, no set end date), or if there is no spousal support being paid at the moment but a reservation is in effect, then a material change in circumstances allows a modification.  However, where the court ordered defined duration support, and that support is still ongoing, a material change in circumstances is neither necessary nor sufficient to modify support.  Instead, the party must show either that 1) something the court thought would happen has not happened (or something the court thought wouldn't happen has happened) through no fault of the party seeking modification, or 2) there's been a material change in circumstances not foreseen by the court when it made its order.  So, in that situation, while a material change in circumstances can cause spousal support to be eligible for modification, it is only available to do so when the material change was something the court did not foresee when it made its initial order.

Myth:  I'm entitled to be supported sufficiently to live the same lifestyle as I did before the divorce.

Reality:  First the court must determine that you are entitled to any spousal support, then, if it does so determine, the court uses a list of factors to set your support, of which your lifestyle prior to divorce is only one.  In fact, the most important consideration for the court in setting the amount of support tends to be what you need and what the payor is able to pay.

So, the first thing the court must consider is whether you're entitled to support at all - and your lifestyle prior to the marriage is not really part of that consideration.  Instead, the court considers what led to the breakup of your marriage, and, typically, your relative incomes.  Then the court when setting the amount and duration of support considers 13 factors laid out in Virginia Code Section 20-107.1(E), of which your lifestyle during the marriage is just one factor.  Amongst those factors is not only your current income and expenses, but also your earning capacity - so if the court thinks you are voluntarily underemployed, it might act as though you earn far more than you actually do.  Finally, the court considers what you need (including consideration of what your earnings are and/or what they should be) and what the payor can actually pay, then sets support accordingly.

Considering the financial disruption that occurs during a divorce, let me put this bluntly.  In my legal career to date, I have never once seen a judge order someone to pay an amount of spousal support that would be sufficient to maintain the other spouse in the "same lifestyle" as they had prior to the separation and divorce.  As a result, you would be doing yourself a grave disservice if you come into the case thinking you will receive such an amount of support.

Myth:  I should expect spousal support to last about half the duration of the marriage.

Reality:  While some judges do like to follow this "rule of thumb," doing so specifically would be contrary to the law, and in fact most cases do not warrant this kind of award.  Instead, the most typical consideration for the duration of the award is whether the payee can ever reasonably be expected to be able to solely support him or herself, and if so, how long that will take.

Until just a couple of decades ago, spousal support was always indefinite - as in it had no set end date.  Then the General Assembly decided the court should have the option of having what's called "defined duration" support, where there is a set end date, and sure enough, today the vast majority of spousal support awards are defined duration awards.  The General Assembly also decided that situations where a spousal support award may not be warranted right away, but might be in the future, should also be addressed, so it created the concept of a "reservation" of spousal support.  A reservation basically means no support is awarded right now, but until the reservation expires either party can come back to court and seek spousal support if something changes.  The General Assembly also said that, unless "good cause" is shown otherwise, the duration of the reservation should be half the length of the marriage.

You can see where I'm going with this - somewhere along the line people started assuming that the presumed duration of the reservation meant the duration of a defined duration spousal support award also should be half the length of the marriage.  Even a number of judges started operating under that assumption.  However, the Court of Appeals has repeatedly made clear that this is not a good rule of thumb to operate under.  Instead, the trial court must figure out what it expects to happen over time, and that if whatever caused the trial court to think support is warranted right now will likely change, the court should target that date for the end of its defined duration.  As a result, the defined duration might be well less than half the length of marriage (I've seen a case, for example, that resulted in one year of spousal support despite a nine year marriage), or it might be well more (I've seen 5 years of support awarded for a marriage that lasted 3 years, and knew an attorney who had a case where indefinite support was awarded for a marriage that lasted 18 months).

Considering that, as I said in the previous section, the most important factors for the court tends to be what the payor can pay and what the payee can (or should) need, the most important factor for the court in figuring out the length of a defined duration support award tends to be figuring out when the payee no longer will (or should) need the support.

Now, the way the length of marriage tends to come into this is that if one spouse, as often happens, stepped back in his or her career to allow the other spouse to thrive in his or hers, then the longer the marriage, the longer that step back lasted and the harder it will be for that spouse to regain their full place in the labor market.  This is why someone who's been a housewife or househusband for 30 years is very likely to get indefinite spousal support - because being out of the job market that long makes it very unlikely he or she will ever be able to fully support him or herself on their own.  In the meantime, if you only stepped back for two years, it might only take you two years or so of support to recover.

So, all in all, the "half the length of the marriage" rule of thumb, while some judges still follow it, is usually worth forgetting.

Myth:  It won't really affect my request for spousal support if I have sex with my significant other after my spouse and I have separated.

Reality:  By law, sex with someone other than your spouse is still adultery, even if you are separated, so the statutory bar to spousal support will still apply to you unless you can prove that your different economic circumstances are so substantial as to be able to say failing to award you spousal support would be a miscarriage of justice.

I recently covered in this blog the topic of spousal support and adultery.  Specifically that adultery bars the adulterer from receiving spousal support unless applying the bar would be a "manifest injustice."  Nonetheless, I repeatedly encounter the misconception that once you are separated, it's no longer adultery.  That just isn't true.  Until you are divorced, you are still legally married, and sex with anyone else is adultery.  As a result, even if that sex happens after you are separated, you are still subject to the statutory bar to spousal support.

Now realistically speaking, the fact that the adultery happened post-separation does strengthen your manifest injustice case.  This is because the manifest injustice calculation considers both the "degrees of fault" in the divorce and the "relative economic circumstances" of the parties.  So, if your adultery occurred post-separation, then it cannot be part of the "degrees of fault" calculation.  But nonetheless, any other thing you did to contribute to your divorce would still be considered.  The reality is, the manifest injustice exception was designed to apply to only the smallest sliver of cases where you might expect the party seeking support to be rendered destitute if they are not supported.  The likelihood that any given case will qualify for that exception is low, and the fact that your adultery occurred post-separation does not particularly increase those odds.

Conclusion

This post represents just some of the many misconceptions I encounter every day in spousal support cases.  If you are involved in a spousal support case, I would strongly encourage you to hire an attorney to help you work through all the misconceptions you may have.  If you are interested in my services, and have read my initial consultation policy, you can reach out to me by e-mail at SLeven@thebaldwinlawfirm.com, or by phone at (703)281-0134.  Our initial consultations are free for up to half an hour!

Classic Law is Your Friend: Virginia Child Custody and Relocation Law

Whenever I see legal issues come up in "pop culture" - such as in popular TV shows - it always catches my attention.  Especially if it's in a field that I practice.  I will admit, when things are covered in a manner that I find incomplete or flawed, I feel fairly compelled to act to "correct the record" with a blog post.  That's how I've felt about the last few weeks watching family law matters be handled with extreme inaccuracy on the TV show Grey's Anatomy.  I understand the need for dramatic license, but there's a point of it going too far...

Anyways, to cut a long story short, the custody dispute that wrapped up in yesterday's episode had my attention because it involved relocation law, but almost no relocation law principles were discussed.  As I told a friend, in the real world, the case wouldn't have even been close.  So, in order to satiate my desire to "correct the record" to the world, I've decided to go ahead and make today's blog post a "classic" post and to re-post my piece on relocation law, originally published on July 18, 2013 and titled "You Can't Take the Kids and Run - Relocation and Child Custody" with some minor edits.

As always, before reading this blog post please review my disclaimer by following the link above or by clicking on this link.  As always, the legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

The reality is that, unless you are a particularly stubborn person, or a person who managed to find, and could afford, your dream house right out of college, almost all of us will move during our adult lives.  In fact, we may move frequently.  For most people, this is not a big deal - sure, it may be inconvenient, but a few days of packing, a day or two of actual moving, a few days of unpacking and it’s done.  For people with children who do not live with the child’s other parents, however, it can quickly devolve into a nightmare.

There has long been recognized in the United States a right to travel and move freely within the United States - not only within your own state, but from state to state.  This is, in fact, considered a “fundamental” constitutional right.  In other words, a constitutional right that is so basic, it cannot be infringed upon by the government without the government meeting the most constitutionally rigid of tests - “strict scrutiny” - wherein the government must prove that its actions are “narrowly tailored” (as in, this is the least restrictive approach possible) to resolve a “compelling government interest.”  So, if you have custody of your child, the other parent absolutely cannot prevent you from moving.  But, the other parent can prevent you from bringing your child with you, and therein lies the problem.

Relocation cases in the child custody context are difficult issues.  For one, they inherently affect the custodial parent far more than the non-custodial parent.  A non-custodial parent’s relocation does not have the possibility of harming the child’s relationship with the other parent, but that certainly is a possibility in the reverse.  It leaves many custodial parents feeling like the law treats them unfairly - and to an extent, they are right.  In this blog post, I hope to help you navigate some of the challenges of a relocation involving children whose parents live apart.

Relocation Cases - Burden of Proof, etc.

A typical relocation case begins with the custodial parent giving the court and the non-custodial parent the mandatory 30 days’ advance notice of the relocation.  If the non-custodial parent does nothing, the relocation happens, and any new case involving custody and visitation will treat the relocation as given and the non-custodial parent as essentially having forfeited his or her right to object to the relocation (assuming the custodial parent did, in fact, give the mandated notice properly and the proper amount of time in advance).  When a disputed relocation case arises, it happens when the non-custodial parent during that 30 day window files a motion to enjoin the relocation.  That’s where the “fun” starts.

Despite the fact that the case is initiated with a motion filed by the non-custodial parent, the burden of proof in a relocation case is actually on the custodial/relocating parent (as a note, I will continue to treat the relocating parent and custodial parent as interchangeable in this case because it is practically unheard of for there to be a contested relocation involving the non-custodial parent moving - at worst, there will just be a motion to alter that parent’s visitation). 

Of course, the question is “burden to prove what?”  The answer to that question, unfortunately, is that the Virginia courts still have not sorted this out, and unlike many other states, the Virginia legislature has not passed a law giving the courts guidelines for determining relocation rights.  Instead, we have a mishmash of rules.  The custodial parent must prove that the non-custodial parent’s relationship with the child will not be harmed by the relocation.  However, if the custodial parent fails to prove that, but the custodial parent succeeds in proving that the relocation would be in the child’s best interest anyways, then the relocation may be approved regardless - but note that to prove this, the relocating parent needs to prove the that the move itself independently benefits the child.  It's not enough to show that the move would benefit the parent and that benefit would then rub off on the child, or that the relocating parent is the better fit for the child - it must be proven the child will be better off in the new location than the old location despite any harm to that child's relationship with the other parent.

Further, if the custodial parent proves that the custodial parent cannot (perhaps for reasons of jobs, finance, threat to health, etc.) remain at the custodial parent’s current location and cannot move to a location that is closer than the proposed relocation point, then the court must do a whole different analysis of whether the child’s best interest is custody with the custodial parent at the new location or with the non-custodial parent.

If it sounds like a mess, it is, but until the courts or the legislature gives us some clarity, that’s what we are left with.  The general rule (as always, this is just a general rule, as every case is different) is that if you show that with the relocation, the non-custodial parent's visitation will not have to be altered at all, then the relocation will probably be approved.  If you cannot show that, the relocation probably will not be approved barring some other extraordinary circumstance.  You should also be prepared to take on the burden of any additional travel - if plane travel is suddenly necessary, you’ll be required to pay for it, if an extra two hours of car travel is required, you’ll be required to travel those extra two hours.

My Relocation was Denied - Now What?

If your relocation is denied (in other words, if the motion to enjoin is granted), you are actually only enjoined from relocating with the child.  As discussed above, the non-custodial parent cannot stop you from moving.  So, you would have several options.  If it is a possibility, you can remain where you are, or propose a new relocation point that is hopefully closer to the non-custodial parent and might then be approved.  You could also decide to move anyways, but then you would have to surrender your child to the custody of the non-custodial parent (you can try to get your child back, and now in your new location, if there is a “material change of circumstances” after the change in custody, but that can take years, and there is no guarantee of success).  You could also move with your child anyways, and then be arrested and go to jail for contempt of court (and of course, the other parent would then get custody while you are in jail).  Those are pretty much your only options if your relocation is denied.

My Relocation was Approved, But Visitation Isn't Working

If your relocation was approved but it becomes clear that the visitation arrangements are no longer working, then you can file a motion to modify visitation.  This is because the fact that visitation arrangements do not work as planned is usually considered a “material change in circumstances” that warrants re-consideration.

Now, with your relocation in place, you can make a request to reduce the non-custodial parent’s time.  Just be prepared that a hearing like this can go either way.  They may very well get more time, if the judge believes that more time would make the plan work better and it would be in the best interest of the child.  Regardless of what you do, however, you are not forced to just live with visitation plans that sounded great in theory but turn out not to work at all.  Be aware, however, that if it appears to the judge that this was your plan all along - that you knew the visitation would not work and you would just ask to reduce it after you move - you could be slammed pretty hard both for attorneys fees and in custody rights themselves.

Conclusion

Relocation is one of the toughest issues there is involving custody.  Many people get easily frustrated at the amalgam of rules the courts use, and the sometimes nonsensical rulings that come out of it.  If you are a custodial parent preparing to relocate or a non-custodial parent worried about your visitation rights after a potential relocation by the custodial parent, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation with our firm.  While I do not handle custody/visitation cases anymore, others in my firm do, and I will be happy to set you up with them.  Your initial consultation will be free for up to half an hour!