In Virginia there are two ways of deciding about spousal support, also known as alimony. The first is used prior to the divorce. The second is used for the period after the date of divorce.
Temporary Spousal Support
For the period when a husband and wife are separated but not yet divorced, sometimes called the “pendente lite” period, most courts in Virginia now use formulas developed by Fairfax County courts to determine the amount of spousal support.
If child support is not involved, then spousal support will ordinarily be 27% of the gross income of the spouse who earns more, minus 50% of the gross income of the spouse who earns less. If child support is also involved, then spousal support will ordinarily be 26% of the gross income of the spouse who earns more, minus 58% of the gross income of the spouse who earns less.
For example, consider a case in which one spouse earns $90,000 per year and the other earns $20,000 per year. If they have no minor children, the formula recommends $14,300 per year. (27% of $90,000 = $24,300; 50% of $20,000 = $10,000; and $24,300 – $10,000 = $14,300 per year.) Spousal support is usually paid on a monthly basis. The monthly payment would be $1,192.
If the parties with those incomes do have minor children, then the formula recommends $11,800 per year. (26% of $90,000 = $23,400; 58% of $20,000 = $11,600; and $23,400 – $11,600 = $11,800 per year.) The monthly payment would be $983.
In addition to spousal support, the parent with the higher income may need to pay child support, but that is a topic for another day.
The parties can settle on a different amount of interim spousal support for a variety of reasons. They can arrange this by working with a professional family mediator and putting their Agreement into writing or by asking their attorneys to negotiate an acceptable settlement. If the matter is left to a judge to decide, the Court may also deviate from the formula if the judge is persuaded that there is a good reason to do so.
Spousal Support After Divorce
When clients or judges are deciding about spousal support after the date of divorce, the rules for determining spousal support change radically. Many factors can influence what amount of spousal support is to be paid and for how long. Often the spouse with the higher income pays spousal support for about half as many years as the marriage lasted, but no formula or rule is used consistently.
In words that I have abbreviated here (for exact wording, see Virginia Code § 20-107.1), the law says that, to determine the nature, amount, and duration of spousal support, the court shall consider the following factors:
1. The obligations, needs, and financial resources of the parties, including income from pension, profit sharing, or retirement plans;
2. The standard of living established during the marriage;
3. The duration of the marriage;
4. The age and physical and mental health of the parties and any special circumstances of the family;
5. 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;
6. The contributions, both monetary and non-monetary, of each party to the well-being of the family;
7. The property interests of the parties, both real and personal, tangible and intangible;
8. The provisions made with regard to the marital property under § 20-107.3;
9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for them;
10. The prospects, time, and costs involved for a party to acquire education, training, and employment to enhance his or her earning ability;
11. 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;
12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
The factors on that list, which judges must consider when deciding about spousal support, makes sense. You may want to use the same set of factors when you are working with a mediator and/or an attorney to negotiate the terms of your divorce. They may help you decide what is needed and what is fair.
Related Decisions
Decisions about spousal support are often linked to decisions about who gets what marital property. Often both matters are included in a Marital Settlement Agreement. For example, one spouse might offer to let the other keep the family home if the other will waive any claim to spousal support. (Whether that proposal is good for either spouse varies according to other facts and circumstances.) You can work with one professional family mediator or work with two attorneys to negotiate the terms of your Marital Settlement Agreement.
A list of common monthly expenses appears here. Using it may help you with your planning about how much spousal support is needed and how much is possible.
Modifying Spousal Support
It may be possible to modify spousal support if either party’s financial situation changes significantly.
If you waive spousal support when you divorce and do not reserve the right to re-open the matter later, then it is very unlikely that you will ever be able to get any spousal support.
The End of Spousal Support
Spousal support ends automatically if either party dies. It also ends automatically when the person receiving support remarries.
This article is for informational purposes only. Nothing here should be construed as legal advice.
