Questions: Are there any Virginia decisions that have considered whether incarceration automatically terminates support obligations? Are there any Virginia statutes that provide that spousal support orders or obligations are stayed upon incarceration?
Before their divorce became final, a husband agreed to pay his wife $5,000 per month in spousal support. This final decree included provisions for enforcement, modifications, or revisions of the support agreement, which had been incorporated into the final decree.
The husband was indicted, convicted, and sentenced to prison on several criminal charges. “As a result of his criminal convictions, he has federal restitution orders totaling more than $2.47 million and an IRS lien of approximately $87,000… Husband was released from prison in May 2020.
Since the Husband’s release, he has allegedly earned approximately $3,600 per month… He testified that he has been ordered to make two $400 federal restitution payments per month and that he remains subject to the IRS lien… He claims that he currently has no assets or other financial resources…
The Wife alleged that the Husband made no spousal support payments while incarcerated, and since his release, he has made three spousal payments totaling $300.
Hoping to find the Husband in contempt with the court, the Wife moved to reinstate the divorce case and seeks enforcement of the divorce decree, including payment of past-due support totaling $489, 239.
Husband asserts that his support obligation should have been stayed while he was incarcerated and that the property settlement agreements should be modified due to the changed circumstances.
Virginia law allows for the increase, decrease, or termination of spousal support obligations when there is a ‘material change in the circumstances’ of the parties, including changes that could not have been reasonably contemplated by the parties when they agreed to the original support provisions.
Although incarceration of the party paying spousal support arguably constitutes a material change in circumstances, here there is evidence that Husband’s spousal support obligations cannot be modified based on a material change in circumstances because the parties voluntarily agreed to those terms in property settlement agreements signed before their 2013 divorce.
While there isn’t any Virginia decisions that have considered whether incarceration automatically terminates spousal support obligations, your spousal support payments do not automatically stop while you are incarcerated, but you can request that your order be paused or reduced if you are no longer able to pay.
If you do not ask the family court judge to reduce your spousal support order, then your missed payments plus interest will add up while you are incarcerated, and you must pay this after you are released.