Factors Determining Spousal Support in Virginia

Spousal support, also known as alimony, is often awarded in divorce cases to help one spouse maintain the standard of living in which they grew accustomed to throughout the relationship. Usually, the higher earning party (the party who makes more money) is responsible for paying spousal support payments, monthly, to the lower earning party. There are three main types of spousal support that a court can award:

• Pendente lite support,
• Permanent support, and
• Limited duration support

The type of support you need, and the amount, is ultimately determined by the court, based on a variety of factors. The attorneys at Smith Strong, PLC are ready to help you with determining whether spousal support is something you will need to consider in your divorce case, and if so, how much and how long.

Pendente Lite Support

Pendente Lite support is support that is awarded during the divorce proceedings on a temporary basis before a final agreement or hearing is rendered. Though temporary, it will usually be converted into a longer support obligation once the divorce proceeding is finalized, unless more evidence is raised.

Permanent Support

So called “permanent support” is not as common as one might think, with it usually only being awarded in long term marriages (17 years or more), with one party nearing the age of retirement and being unable to enter the workforce. It is also awarded in cases where one party is severely disabled and unable to work.

Limited Duration Support

Limited duration support is the most common type of support awarded, and is either defined in a number of years of the more nebulous “indefinite” duration. This type of support is ordered by the court for a specific period of time in which one party will be required to pay a set amount to the other party, usually for either rehabilitative or reimbursement purposes, or left as “indefinite,” with an expectation of the paying party returning to court for a modification.

Rehabilitative support is awarded when the lower earning spouse has taken time off from their career or education to raise their family and run the household. The higher earning spouse in such cases will usually be required to pay the other spouse, who has either stopped working, taken a huge loss in job opportunity to raise the family, or stopped their education to raise the family, in order to allow the lower earning spouse to go back to school and re-enter the workforce. This can be an “index” amount, frequently defined by a number of years.

Reimbursement support is a type of limited duration support that is awarded to one party as a form of reimbursement for their contribution to something the other party did. This is usually done when one party has pursued an educational degree at the expense of the other party, while they maintained the household as the other advanced their educational attainment.

Factors the Virginia Courts Consider When Determining Spousal Support

Virginia Rule on Spousal Support[1]

The courts consider:

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, 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 and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce, as are necessary to consider the equities between the parties.

Needs and Financial Resources of the Parties

When calculating spousal support, the courts will look at the needs and financial resources of the parties. What does each spouse need, financially, in order to maintain their lifestyle within reason? What sources and potential sources of income does each party have to sustain these needs? Here, the courts will look at income from employment, investment accounts, inheritances, and other general sources of wealth.

Standard of Living

Based on this factor, the Virginia courts like to uphold each spouse’s standard of living in which they have grown accustomed to during the marriage. Ideally, you will wish for your standard of living to remain relatively unchanged both prior to and after your divorce. If you are accustomed to a high standard of living, it follows logically that your spousal support award should be higher. However, there are still a number of factors the court must consider.

Running two households is more costly than one. Once you and your spouse have divorced, money that was once being used to support one household (i.e. one home, one mortgage payment, one utility and electric bill, etc.) is now being stretched to support two – one for each party. The replication of a high standard of living in two households is costly compared to supporting only one. Therefore, it is sometimes not economically feasible to support two households at the established standard of living, due to insufficient funds.

Duration of Marriage

The courts also look at the duration and length of the marriage. This is based on the idea that the longer you are married, the more each party has contributed to the marriage, and to the shared standard of living. This is considered by the court when calculating spousal support.

Age, Physical, and Mental Condition of the Parties

The age, physical, and mental conditions of the parties comes into consideration as well. Someone who is approaching retirement age or is unable to enter the workforce due to disability is much more likely to receive a higher spousal support award due to inability to obtain a job.

Age, Physical, and Mental Condition of the Children

The age, physical, and mental conditions of children to the marriage are also taken into consideration. If the children are still young and dependent on one parent for supervision, that parent might be unable to enter the workforce or obtain an education to enter the workforce due to having to raise the children.

Contributions to the well-being of the family, both monetary and nonmonetary are considered when calculating spousal support. The court will look at financial contributions to support the family, as well as child rearing contributions to run the household and raise the children.

Property Interests and Marital Property

The court will consider the overall financial resources of each party when calculating spousal support. The more property a party has, the more financial resources they have. Additionally, the marital home can only be awarded to one party in a divorce. The other party will have to find another place to live. With homes being costly, this will be taken into consideration when calculating spousal support.

Earning Capacity, Opportunity for Education, Decisions Regarding Employment and Family, and Extent to Which Each Party Has Contributed to the Other Party Obtaining an Education

Substantial differences in income often exist between the married couple. Differences in parenting responsibilities, opportunity, work ethic, or education level can exacerbate differences. The choice one spouse makes to sacrifice his or her education or career to allow the other spouse’s career to advance may also lead to this discrepancy. Additionally, family choices can lead to a disparity in earning potential. When a couple decides to have children, oftentimes, one parent decides to leave the employment field in order to stay home and care for the children. The interruption of the caregiving parent’s career or education to care for the children also leads to this disparity in income. These factors will be taken into consideration when calculating support.

[1] Va. Code 20-107.1 E.