The term “alimony” is not used in Virginia. Money that must be paid to a former spouse for their support after the divorce is called “spousal support.” The authority to award spousal support is granted to the Circuit Court presiding over a divorce case by Virginia Code Section 20-107.1.
The overwhelming majority of spousal support awards require husbands to pay support to their former wives. In most divorces, the husband has the higher income and an award of spousal support can be justified on that ground. However, awards of spousal support in favor of a husband, even when the wife has a higher income, are rare. Whether it is because husbands don’t request spousal support or because judges harbor a bias against the concept, anecdotal evidence suggests very few husbands obtain an award of spousal support.
Effect of Fault on Spousal Support
The code prohibits an award of spousal support to a spouse who is guilty of one of the fault grounds for divorce listed in Virginia Code Section 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.
There is an exception, however, for situations in which 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.” One situation where this provision can be applied is where the guilty spouse has a disability or serious medical condition.
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. In one case, the wife and the man alleged to be her lover traveled together and stayed in the same motel rooms but swore they never had sexual intercourse. The Court of Appeals held that the evidence was insufficient to satisfy the clear and convincing standard and that the divorce had to be based upon a no-fault ground.
There are methods of proving the adultery by clear and convincing evidence. Usually evidence that is strong will result in an agreement by the guilty spouse to waive spousal support. Gathering evidence of adultery must be done very carefully, however, to avoid violating other laws.
In addition to the bar against an award of spousal support in favor of a spouse who has been sexually unfaithful, the court is required to consider the “circumstances and factors” that contributed to the dissolution of the marriage, including the factors mentioned in 20-91(3) (conviction of a felony) and 20-91(6) (cruelty, causing reasonable apprehension of bodily hurt, or willful desertion). In this context, the circumstances (including infidelity) are factors to be considered but not necessarily decisive.
Form of Spousal Support
The court can order that the spousal support be paid for a limited time, for an unlimited time, or all at once in a lump sum. If ongoing support is awarded, it is almost always a specified amount per month. The sum can be spread over two payments within the month so as to coincide with pay dates.
One feature of temporary spousal support that is awarded for the period while the case is pending is that the ability to invoke the adultery prohibition is limited because the question of whether there was adultery is left for determination at trial. So, the innocent spouse may have to pay temporary spousal support for an extended period of time while the case is pending, even though adultery can be proved by incontrovertible evidence.
Contempt
Family support orders, both child support and spousal support, are among the few debts for which the debtor can be sent to jail for non-payment. That is why it is extremely important that a party agreeing to pay spousal support be absolutely certain they can actually pay it. If they don’t pay the amount ordered by the court, they can be held in contempt and sentenced to time in jail.
Other Factors
In addition to those factors already mentioned, the court is required to consider the following factors in determining whether to award spousal support and, if so, how much:
- 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 non-monetary, 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 Virginia Code Section 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.
Modification of Spousal Support Awards after Divorce
Any award of spousal support made under this section is subject to adjustment later. A separate code section, 20-109 deals with changing the amount of support. Settlement agreements between the divorcing spouses, however, must specifically provide that they are subject to revision by the court before this section can be invoked. If they don’t, the constitutional prohibition against altering private contracts can prevent the court from making any change to the amount of spousal support provided in a divorce settlement agreement. Anyone considering an agreement to pay spousal support should consult an attorney and give very careful consideration to the possibility that they may later, through no fault of their own, be unable to pay the agreed amount.
Predicting the Award of Spousal Support
Unlike child support, which is formula driven, spousal support is highly unpredictable. Apart from the list of factors mentioned in the statute, the judge (and sometimes the commissioner in chancery) has extremely wide latitude. This unpredictability provides a strong incentive to resolve the question of spousal support by agreement.
Jurisdiction
One further difference between spousal support and child support is that the power to modify spousal support awards generally stays with the state where the divorce is granted. The Virginia code does not authorize the court to transfer jurisdiction to another state and neither does the Uniform Interstate Family Support Act, which many states have adopted. This can be inconvenient if everyone has moved away from the state where the divorce was granted and one of the parties wants to have the spousal support amount modified.
Enforcement, however, is not necessarily a problem. The order to pay spousal support can be enforced in any state. The normal procedure is to register the decree in the paying spouse’s state by filing certified copies with the local court. That court can then take the action necessary to collect the money like having the support withheld from pay and holding the delinquent party in contempt.
Payment can also be enforced in the state that granted the divorce. The court there can order wage-withholding and hold a delinquent party in contempt. But often it is more cost-effective to do the enforcement in the state where the paying spouse lives. It is easier to have a party held in contempt and sent to jail in the state where they live for the simple reason that the local sheriff can go to their house and arrest them. The sheriff from the state where the divorce was granted, on the other hand, cannot cross a state line to arrest someone who hasn’t paid their support and extradition in these cases is rare.
Bob Jeffries is an experienced Virginia divorce attorney who has practiced in the Juvenile and Circuit Courts of Virginia Beach, Norfolk, Chesapeake, Suffolk, Portsmouth, Hampton, Newport News and York Poquoson since 1998. He can help you to ensure that your rights are protected. In Virginia a spouse may be required to pay money to support their spouse. The term “alimony” is not used. The term used in Virginia is “spousal support.” The section of the Virginia Code that deals with spousal support is 20-107.1.
When can spousal support be ordered in a Virginia divorce?
Spousal support can be ordered at the beginning of the case at the initial hearing called a “pendente lite” motion. The section of the Virginia Code dealing with temporary support is 20-103.
Can spousal support be for either a defined or an undefined duration?
In the final decree of divorce, the Circuit Court can order spousal support on an ongoing basis. Particularly in very long-term marriages, the order can remain in effect until one party dies or the order is modified by a judge. Section 20-107.1 allows judges to award support for a limited time or in a lump sum. It says: “The court, in its discretion, may decree that maintenance and support of a spouse be made in periodic payments for a defined duration, or in periodic payments for an undefined duration, or in a lump sum award, or in any combination thereof.”
Because men are generally the higher-earning spouse and seek support less often, most spousal support orders require the husband to pay support to the wife. In short term marriages, if any support is ordered, it is likely to be for a limited time. In long term marriages, support may be ordered to be paid until one party dies. Unless the parties otherwise agree, a spousal support order can always be reviewed by a judge and changed if the circumstances are different. In one unfortunate case, for example, I made a motion to have spousal support terminated because my client had suffered a stroke and could no longer work.
Negotiating a settlement:
Whether a support order can be modified will be an important issue in negotiating a settlement. Support can be “non-modifiable” if the parties agree to it. Non-modifiability prevents an order from going up but it also prevents it from going down or being terminated. It is important that any settlement agreement be explicit on this point. If the agreement provides for support and does not expressly say that it can be modified, the courts will be unable to change it.
How much discretion does the judge have in ordering spousal support?
Unlike child support, which is determined by a formula, spousal support is “discretionary.” That means that the judge has to make a very subjective judgment. Section 20-107.1 gives the judge a list of factors to consider and gives them the authority to pick a number. Because the facts of each case are different and the judges each bring their own perspective to the decision, it is not possible for lawyers to predict what spousal support, if any, will be ordered. For this reason, parties try to agree on the amount and duration to avoid the uncertainty.
Spousal support is a very serious obligation. Back spousal support cannot be discharged in bankruptcy and the paying spouse can be put in jail for contempt if the ordered amount is not paid. Law and Order fans may remember Detective Lennie Briscoe and his frequent laments about paying alimony. That term, which has a long history, is somewhat out of fashion. The term “spousal support” has been gaining ground, leaving “alimony” with a 1950′s ring to it. The Virginia Code addresses the subject in Section 20-107.1 , which talks about the “support of spouses.”
While theoretically gender neutral, spousal support is overwhelmingly a transfer from male to female spouses. This is due mostly to disparities in income with the husband usually being the higher earning spouse. But it is also because men don’t often seek it. Their lawyers may put it in their papers, but that’s about all they do.
For better or worse, spousal support in Virginia is a discretionary decision. The legislature has given the Circuit Court judges a list of factors to consider when deciding how much spousal support to award and for how long. As long as the judge talks a little about each of the factors in reaching a decision, it is close to impossible to have an award of spousal support reversed on appeal. This inevitably makes the spousal support outcome heavily dependent on which judge is assigned to hear the case.
Amount, Duration, and Modification
Because spousal support is unpredictable, the parties in most cases reach an agreement. There are three variables that are part of the negotiation: (1) amount, (2) duration, and (3) modification.
With respect to the amount, lawyers will often resort to a rule of thumb called “the Fairfax formula.” Where a juvenile court judge is asked to decide temporary spousal support, § 16.1-278.17:1 of the Virginia Code says that the number fixed by the Fairfax formula is the “presumptive amount.” That is, the judge should use it unless, “for good cause shown, including any relevant evidence relating to the parties’ current financial circumstances that indicates the presumptive amount is inappropriate.”
The calculation is arbitrary but people use it because it is a way to move the issue away from the parties’ emotions and grievances against each other. It provides them a starting point for discussion and, as in the Juvenile Court, they can go higher or lower, depending on the circumstances.
The duration element also has a rule of thumb. Except in very long term marriages or where the recipient spouse is unable to work for some reason, the rule says that spousal support should be paid for half the length of the marriage. In very long term marriages, old age will be the limiting factor unless the paying spouse is wealthy enough to continue paying regardless of whether they are working.
The last variable, modification, is one that most people don’t know is important. The settlement agreements that people make are contracts. And judges are not generally allowed to change contract terms. If you agreed to it, no matter how sympathetic your argument is, their hands are tied and they cannot change it. That is, unless the agreement itself says they can. If the agreement states that the amount or duration or both are “subject to judicial modification,” then the court can raise or lower the amount and lengthen or shorten the duration. Sometimes people will agree that only one aspect can be changed. They might agree that the amount but not the duration can be modified. The may agree that the amount can go down but not up or vice versa. They can permit modification within certain limits. So there are lots of permutations that be used to deal with the modification question.
Pendente Lite Orders
People going through a contested Virginia divorce will probably hear the words “pendente lite.” The pronunciation of “lite” varies with some saying “light” and others saying “leet” or “leetay.” It’s hard to go wrong because no one seems to know for sure which is right. The phrase just means “while the case is pending.”
The first court hearing in a Virginia divorce is likely to be a “pendente lite” motion asking the judge to decide who lives in the house, who has primary custody and what visitation the other parent will have, and, often most importantly, who pays what while the case is pending.
While child support is relatively easy to compute, spousal support is not. That is because Virginia’s divorce law does not provide a formula for spousal support the way it does for child support. However, the Virginia code does provide a formula for spousal support if the case is in the Juvenile and Domestic Relations Court.
Juvenile and Domestic Relations Court and Virginia Circuit Courts
Virginia has two courts that deal with family law matters. One is the Juvenile and Domestic Relations Court which decides child custody, visitation, child support and spousal support. However, the Juvenile Court cannot decide questions concerning the parties’ debts and property and cannot grant a divorce. Only the Virginia Circuit Courts can grant a divorce or divide the parties assets and liabilities.
If a party is only seeking to resolve child custody or support, they have a choice. They can either file a petition in the Juvenile Court or they can file a complaint for divorce in the Circuit Court. Sometimes people choose not to start their case with a complaint for divorce filed in one of the Virginia Circuit Courts. Instead they file a petition for support in a Virginia Juvenile Court. This is the one situation where the Virginia Code does provide a formula for spousal support.
Formula for spousal support in Virginia Beach, Virginia Code § 16.1-278.17:1.
Part C of that section says:
C. If the parties have minor children in common, the presumptive amount of an award of pendente lite spousal support and maintenance shall be the difference between 28% of the payor spouse’s monthly gross income and 58% of the payee spouse’s monthly gross income. If the parties have no minor children in common, the presumptive amount of the award shall be the differencebetween 30% of the payor spouse’s monthly gross income and 50% of the payee spouse’s monthly gross income. For the purposes of this section, monthly gross income shall have the same meaning as it does in section § 20-108.2, as amended.
As an example, the formula would apply as follows if the higher earning spouse made $5,000 a month and the lower-earning spouse made $2,000:
With Children:
Payor’s Gross x 28% ($5,000 x 28% = $1,400)
Payee’s Gross x 58% ($2,000 x 58% = $1,160)
Spousal support ($1,400 – $1,160 =$240)
or, Without Children:
Payor’s Gross x 30% ($5,000 x 30% = $1,500)
Payee’s Gross x 50% ($2,000 x 50% = $1,000)
Spousal Support ($1,500 – $1,000 = $500)
This has sometimes been called the “Fairfax formula.” Lawyers frequently use it as a rule of thumb to estimate what spousal support should be. But this is the only code section that actually requires it to be used and it applies only to cases that are in the Juvenile Court. It doesn’t apply in a Virginia divorce case that is pending in a Circuit Court.
When this formula is not considered
In cases where one party has filed a complaint for divorce in a Circuit Court, the judge will probably not consider this formula. Some Circuit Courts have their own local formulas for deciding spousal support pendente lite. The methods used by Circuit Court judges vary widely across the state. The common thread is an examination of the income and expenses of both parties. This is a situation when a divorce lawyer who has experience in the Circuit Court where your case is pending can be very helpful in advising you about the method commonly used in that court and helping you to explain your financial situation to the judge. If you pay spousal support, you can subtract it from your income before calculating how much income tax you have to pay. If you receive spousal support, you must add it to your income before calculating how much tax you will have to pay. If you receive spousal support, you should pay the estimated income tax on your spousal support quarterly. If you don’t, you may owe a penalty. Plus, it’s a good idea to base your budget on what you will have after taxes are subtracted.
If you receive $1,000 a month in spousal support, you may have to come up with several thousand dollars next April 15. If you spend every dollar as it comes in, you may come up short when the income tax on it comes due. So you should estimate, for each monthly payment, how much of it you will ultimately have to pay in federal and state income tax. Then put that part of the support into a savings account and use that money to cover your quarterly estimated payments. Support for children and support for spouses are treated differently under federal tax law. Support for children is not treated as income to the parent who receives it and the parent who pays it cannot subtract it from their income when computing their tax bill.
Support for spouses, however, is just the opposite. The party who receives it must include it in their income when computing their tax bill and the party who pays it can subtract it from their income when calculating their tax obligation.
Spouses who want to receive spousal support need to take this into account when negotiating the amount. They need to estimate the state and federal income tax they will have to pay in evaluating whether a particular figure will be adequate. Similarly, the paying spouse should take into account the fact that they will be able to deduct the spousal support they pay from their income at tax time. It may be that with the tax treatment taken into account, they feel they can agree to a higher amount.
Separation Agreement
Also, when negotiating support, the parties may choose an amount of child support that is above the guideline amount and have that substitute for spousal support that would be taxed. I sometimes find this useful when my client, as a matter of principle, does not want to pay spousal support but is willing to pay a little extra child support. Sometimes, the other spouse is willing to accept this compromise after taking into consideration the fact that the child support is tax-free.Settling your Virginia divorce case with a separation agreement is a great idea. But you do have to be careful about the commitments you make. Spousal support (called alimony in some states) is the place where people who sign agreements without first consulting a lawyer most often have problems.
It is not at all unusual for a client to come to me with an agreement that they have already signed. I have had wives who had waived spousal support, thinking they could come back and ask for it later. I have had husbands who had agreed to pay spousal support thinking it could be modified or terminated by the judge if circumstances change. In both situations, I have had to tell them that they were mistaken and that the judge has no power to make any changes to what they have agreed. The only possible way to change anything was if the other party agreed and that is almost always unlikely to happen.
If you have any thought of perhaps wanting spousal support in the future, you must not sign anything that says you are waiving spousal support. If you are the paying party, you must be extremely careful about the amount you are promising to pay and how long you will have to pay it. And you must be especially careful about whether the court will have the authority to modify either the amount or the duration of spousal support. If you don’t put a time limit on it, you will have obligated yourself to pay it until the other party dies, remarries or lives in a relationship analogous to a marriage for more than a year. And remember, if you don’t pay you can be held in contempt and incarcerated.
So before you sign a separation agreement, it’s essential that you have an experienced Virginia divorce attorney go over it with you. One client could have saved tens of thousands if he had just paid for a one hour consultation.
Adultery and Spousal Support Virginia Code
In Virginia, a spouse who is guilty of adultery usually is denied spousal support. The spousal support statute, Virginia Code Section 20-107.1, says that “no permanent maintenance and support shall be awarded” to a spouse who is guilty of adultery. The word “shall” means the judge has to apply the rule. If adultery is proven, the judge’s hands are tied and no spousal support can be awarded.
There is, however, a loophole. The same code section includes an exception. The next sentence says: “However, the court may make such an award notwithstanding the existence of [adultery] if the court determines from 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.”
The phrase “manifest injustice” is very vague. It could be loosely translated as meaning “really unfair.” So, if it would be “really unfair” to deny spousal support, the guilty spouse can still get it. To give the judges some further guidance as to what should be considered “really unfair,” the legislature directed them to look at “the respective degrees of fault” and the “relative economic circumstances of the parties.” So if the adulterous spouse can show that, even though they were bad themselves, the other spouse was even worse AND the other spouse is significantly better off financially, the judge can award spousal support despite the adultery. It is important to understand that the exception is not mandatory. The judge can, but does not have to, grant spousal support despite the adultery.
Non-Discretionary and Discretionary Decisions
This code section illustrates the difference between two kinds of authority that the legislature gives judges. In some cases, the judge has to do what the rule says, like it or not. If certain things are proved, the judge has to apply the rule. The first part of the no spousal support to the cheating spouse rule is like that. This is called a “non-discretionary” decision.
The other kind of authority entrusts the judge with some leeway. The manifest injustice exception is an example of this. The code says that if the guilty spouse can show they are less at fault and the other party is better off financially, the judge “may” award spousal support despite their misconduct. The key word is “may” which means the judge can weigh the facts and make a judgment call. This is what is called a “discretionary decision.”
It is a lot easier for the lawyers in a case to predict the outcome when the decision is non-discretionary. When the judge has discretion however, it can be very hard to predict what they will do. Among the questions that I get asked is whether it is possible to stop spousal support in Virginia. Before I can answer this question, I need to know whether the support obligation came from an agreement. If the parties agreed to a certain amount of spousal support, I have to read the agreement to be able to answer the question.
But if there was no agreement, the answer is that the court has the power to change the amount and the duration of the spousal support obligation. The judge can increase or decrease the amount ordered or the length of time it has to be paid. The person asking for the change has to first convince the judge that there has been a “material change of circumstances.” That means something must have changed since the order was made and that change has to be big enough to matter.
Material
The word “material” is vague. If the paying party makes $100,000 a year, a decrease of one dollar a year is clearly not material because the difference is insignificant. If the decrease is five thousand dollars, it might be material, particularly if the party has a lot of other expenses. When faced with a request to modify a spousal support order, the judge is not likely to revisit all of the factors that went into the decision, especially the reasons for the dissolution of the marriage. The focus is likely to be more on the income and expenses of the two parties.
If the spousal support came from the parties’ agreement, I need to see what the agreement says about whether the court can change the amount or the duration of the support. If the agreement does not say that the court’s power to modify spousal support is preserved, it may be impossible to change it unless the other party will agree to the change.
Bob Jeffries & Associates, PC
Office: 757-491-0240
e-mail: mt@bobjeffrieslaw.com
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