As always, please review my disclaimer before reading this post by following the link above or by clicking on this link. As always, the legal principles discussed in this blog post are applicable only to the Commonwealth of Virginia.
Update: Some of the information in the below blog post is now outdated due to changes in the law. Please see my 2018 and 2020 Relevant Changes in the Law post for details.
Introduction
When I have an initial consultation with someone about a divorce, if they make more money than their spouse, the first question I usually get is "how much alimony am I going to have to pay?" I'll get the reverse question if my consult is with the spouse who makes less. Unfortunately, the answer I always have to give, as is so often the case, is "it depends." However, the "it depends" is even worse when it comes to spousal support (which is what we now call "alimony" since the roots of the word "alimony" imply that it is only paid by a man to a woman, while legally it can go either way now).
Perhaps the biggest complication with spousal support is that there are generally no "guidelines" for determining the amount. Unlike child support, you can't just put the parties' incomes and a few other factors into a formula and churn out an answer (although there are some minor exceptions to this that I will cover). This means spousal support is largely left to the discretion of the judge - and different judges will vary their opinions widely. Fortunately, there is a little bit of law to help us out, but it's still very hard to come away from the law with an understanding of what any given case will result with.
Four Different Spousal Support Situations
To start off, it's worth noting that there are four unique situations in which spousal support can be awarded, and the law between them varies anywhere from minimally to widely. Spousal support can be awarded as part of a divorce in a Circuit Court case, as a result of a Decree of Separate Maintenance in a Circuit Court case, as a result of a Petition for Spousal Support in the Juvenile & Domestic Relations District Court, or as a result of a contract (either pre-marital or marital - see my post on pre-marital agreements for the distinction).
To add even more complications to this issue, in case one party really needs support right now, while the above cases are pending that party can file a Motion for Pendente Lite Relief. This means they are asking the court to award them temporary spousal support while the litigation is pending - and the law for setting spousal support then is different too!
Contractual Spousal Support
Contractual spousal support is probably the easiest of these topics to cover. If, in a pre-marital agreement, marital agreement, property settlement agreement, or any other contract with your spouse you reached an agreement regarding spousal support, the court will enforce that agreement. Note, however, the court will enforce it precisely. If you include language in your contract allowing the court to modify support in the future, then it can, otherwise the support amount, and the duration of the award, is fixed and unchangeable.
This is very important to understand. I cannot count the number of times I have seen Property Settlement Agreements where someone casually decided 20 years ago to pay a certain amount of spousal support for life, not realizing this meant that they were agreeing to continue to pay it after they were old and unable to work anymore. I've seen people unable to enjoy a retirement because they promised lifetime payments without allowing for a modification. Unless there is something glaring that warrants it, as a general rule I will never recommend to a client to agree to lifetime spousal support without including a clause allowing modification - and you should think twice before you sign an agreement that does this.
Spousal Support Pendente Lite
Now, if you don't have a contract or agreement, spousal support will be decided by the court, and like any litigation, any of the options take a substantial amount of time. As a result, Virginia Code Section 20-103 allows you to file a Motion to temporarily set spousal support while a Divorce or Separate Maintenance action is pending, and Virginia Code Section 16.1-278.17 allows the same in a Petition for Spousal Support case in the J&DR Court. Since the support awarded pendente lite is inherently temporary and will have allowed less evidence collection prior to hearing, the law for setting pendente lite support is a little simpler.
In the J&DR Court, Virginia Code Section 16.1-278.17:1 lays out a specific formula. Under that formula, basically, when there are no children, spousal support will be equal to 30% of the payor's monthly gross income minus 50% of the payee's monthly gross income. When there are children between the parties, then the support is 28% of the payor's monthly gross income minus 58% of the payee's monthly gross income.
The law laid out for pendente lite cases in the Circuit Court is not as clear cut. Virginia Code Section 20-103(A)(i) just calls for the payor to pay "any sums necessary for the maintenance and support of the petitioning spouse." As a result of this lack of clarity, several Circuit Courts have adopted their own "guidelines" that are applicable only to pendente lite hearings. Fairfax County, for example, uses the same formula as the J&DR Court (actually, Fairfax County's guidelines came first, and the legislature liked them so much that they then codified those guidelines for all J&DR courts statewide). Harrisonburg, however, has a very complicated formula that varies depending on whether each spouse is working or not, who is receiving child support, etc. Richmond uses the J&DR formula when there are children, and uses 30% minus 30% (instead of 30% minus 50%) when there are not. Courts that don't have their own guidelines often use another court's guidelines, or just come up with their own numbers that the judge thinks sounds reasonable.
J&DR Court Spousal Support
Ironically, despite the J&DR Court having possibly the clearest pendente lite spousal support law, it has probably the least clear final spousal support award law. Virginia Code Section 16.1-278.15(F) requires only that the court "enter any appropriate order to protect the welfare of the spouse seeking support." That's it, no further guidance from the law. Obviously, judges tend to vary very widely in figuring out what the "welfare of the spouse seeking support" is, although in my experience, judges in J&DR Court cases frequently end up just applying the pendente lite guidelines (maybe with some adjustments) and go with that number.
Circuit Court Support
In a suit for Separate Maintenance or for Divorce, the Circuit Court when determining its final spousal support award must consider a series of "factors" laid out in Virginia Code Section 20-107.1(E). These factors are, essentially:
- The income and expenses of each party
- The parties' standard of living during the marriage
- The duration of the marriage (from date of marriage to date of separation)
- The age and health of the parties, along with any special needs in the family
- Whether or not there are children too young for both parties to work
- The contributions, both monetary and non-monetary, during the marriage of each party to the well-being of the family
- Each party's property interests, including real property and personal property
- What is being done with the parties' marital property
- Each party's earning capacity or ability to increase their earning capacity
- Decisions made regarding each party's employment during the marriage
- The extent to which each party has helped the other increase their earning capacity during the marriage
- Any other factors the court wants to consider
In my experience, the income and expenses of the parties, the duration of the marriage and the earning capacity of the parties tend to be the most important factors, although all are considered, and I've certainly seen cases where the final result hinged on other factors.
After all of that is done, the question then really comes down to a) how much money does the payee really need to support him or herself (or, how much would he or she need if he or she had made an honest effort to find employment), b) can the payor actually afford that amount, and c) is it fair to order the payor to pay that amount.
As you can see, with all these issues coming into play, predicting a spousal support award at the initial consultation phase is practically impossible.
Duration of Spousal Support Award
The next question I get asked, however, is for how long spousal support is going to be paid. The answer, again, is "it depends." For contractual spousal support, the support will last as long as the contract says, or if there's a modification clause, then until the court terminates it. For pendente lite support, the amount will last until the case is over. For J&DR support orders, the support will last until the parties are divorced and a new support order is entered, or until it is modified by the court. For Separate Maintenance and Divorce, it depends.
Until a few decades ago, spousal support was always permanent. It was in place until a terminating event occurred, or the court modified it to $0. Nowadays, permanent support is fairly rare. Instead, the court considers the same factors discussed above when deciding the duration of support. The question essentially again comes down to a) how long will the payee need this support before he or she can support him or herself (or should be able to support him or herself if he or she makes a reasonable effort to find employment), b) can the payor really afford to pay for that long, and c) is it fair to order the payor to pay for that long.
A rule of thumb many attorneys use is that spousal support will be ordered to last half the duration of the marriage (so 3 years for a 6 year marriage, for example). This is just a rule of thumb, however, and should not be relied on outside the negotiating arena. I've seen permanent support ordered for very short marriages, and only a year of support for longer marriages. It really depends on the judge and the circumstances of your case.
Terminating Events
Now, you've heard me mention a few times "terminating events." These are events that terminate spousal support, almost no matter what, even if the spousal support is supposed to be permanent, or for a longer defined duration. These events, which are laid out in Virginia Code Section 20-109(A) & (D) are: a) the death of either party, b) the remarriage of the party receiving support, or c) the party receiving support having cohabited with another person in a relationship analogous to a marriage for a period exceeding 12 months. If any of these occur, spousal support terminates immediately, and if it is remarriage and the payee continues collecting after the remarriage, the payor can sue the payee to get that money back plus interest.
The only way for these to not terminate support is in the case of contractual support, the paying party can waive their right to use this provision. Interestingly, while contracts are generally deemed to be unmodifiable by a court unless there is an express provision stating otherwise, courts have determined that the opposite is true for spousal support termination provisions. In other words, the termination provisions are deemed to automatically apply to all contractual spousal support unless they are expressly waived. This means that a contract that says "spousal support only terminates upon the death of either party" will still be deemed to terminate spousal support upon remarriage of the payee! Instead, the agreement would have to state, specifically "spousal support will not terminate upon the remarriage of the payee." Same for the other conditions.
Finally, "cohabitation in a relationship analogous to a marriage" is a complicated issue that warrants its own blog post some day, but it's worth noting that a "relationship analogous to a marriage" does not mean that a sexual relationship is either necessary or sufficient. If the only part analogous to a marriage is sex, then a court is unlikely to find that the relationship qualifies. If, however, the relationship is completely like a marriage except there is no romance and no sex, the court may still find it to be a relationship analogous to a marriage. Just recently the Court of Appeals ruled that a woman who lived with a platonic female friend but shared chores with her, prepared each other's meals, etc. was in a "relationship analogous to a marriage" with her friend, even though they would be legally barred from getting married in Virginia!
Why Separate Maintenance
Now, you've also seen me talk several times about "separate maintenance." You might be wondering why someone would file a Separate Maintenance case instead of for divorce. Well, let's say a couple has an amicable split - no fault grounds for a divorce exist, but they cannot agree on a division of property or support. The parties have to wait for a year of separation before they can even file for support. Separate Maintenance allows one spouse to get support from the other while the parties are still married. This is essentially an avenue for the spouse who needs support to get into the court when a divorce is not yet available.
There are cases, however, where a divorce may still be available but Separate Maintenance may be more desirable. For example, many health insurance plans do not allow someone to cover an ex-spouse. A Separate Maintenance Order keeps the parties married, but allows for support of the party needing support, and can require the payor party to keep the other party on his or her health insurance as well.
Conclusion
Spousal support law in Virginia is extremely complicated. There is no clearly set way to determine how much someone should expect to pay or receive in any given case, and the law changes depending on the type of spousal support being sought. Understanding the factors involved in determining spousal support, however, can begin to allow you to reach some level of planning. If you anticipate needing or potentially paying spousal support, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consult with our office. Your initial consultation is free for up to half an hour!
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