“How much support will I have to pay? How long will I have to pay it?” These are two of the most frequent and difficult financial questions an attorney is asked by clients preparing for divorce.  In Virginia, courts have a tremendous amount of discretion in determining both.  So, unfortunately, the answer is always “it depends…”

How Much Will I Have to Pay?

The amount of spousal support primarily depends upon the following factors:

1. The needs of the spouse seeking the award;
2. How much the paying spouse can afford to pay after meeting his/her own reasonable needs;
3. The standard of living during the marriage; and
4. The property interests and financial resources of both parties.

Needs and Ability to Pay: 

When determining the needs of the spouse seeking spousal support, the court not only looks at his/her monthly expenses, but also considers his/her “earning capacity”—the ability to support him/herself, whether or not that spouse chooses to seek employment. This issue can be particularly difficult to address in long marriages where the spouse seeking support had a lucrative career that he or she gave up to care for the house and family, while the other spouse continued to pursue his or her career. 

Earning capacity also applies to a spouse’s ability to pay.  If the primary bread-winner decides not to work to his/her full capacity in order to avoid (or reduce) a support obligation, the court can impute income to that spouse. This means that spouse’s ability to pay would be based upon what they are capable of earning, not what they actually earn.  This is usually determined by looking at the paying spouse’s earnings history during the marriage. This information can be found on social security statements, W-2s or 1099s, and income tax returns. Earning capacity of either spouse may also be determined by a vocational expert, who is retained to evaluate the skills, experience, and potential career opportunities.

Standard of Living:

The Court will attempt to keep both spouses within the same standard of living, but in most divorce cases, when one household splits into two, expenses often double and there is not enough money for both parties to maintain their standard of living without each making some changes and sacrifices.

Property Interests and Financial Resources of Both Parties:

The Court will look to the income or potential income which a party could receive from their property interests and resources. The income-producing property could be marital property that was divided in the divorce case, or separate, non-marital property. Examples of income-producing property are dividends from investments, rental income, retirement in pay status, or profits from a separately-owned business, among other things. The Court will also look at the reasonable expenses incurred due to ownership of the property.

How Long Will I Have to Pay It?

Duration of Support:

The duration of spousal support can be “indefinite” or “defined.” Indefinite support ends when one of the following events occurs:  when one of the spouses dies, when the receiving spouse remarries or lives with a romantic partner as if they are married for more than one year, or when the court terminates support due to a material change in circumstances. Defined support has an end date, which can only be extended by a motion filed with the court before the duration period ends.

The Court is required  to consider the following factors in determining the duration of support:

1. The length of the marriage;
2. The age, physical and mental condition of the parties;
3. The ages and needs of any children of the parties; and
4. The time and costs for a party to acquire the skills and education needed to enhance his/her earning capacity. 

Of all of these factors, the length of the marriage seems to play the largest role in determining duration.  Spouses of longer marriages are less likely to be ordered spousal support for a defined duration.  However, the amount and duration of spousal support is often modifiable based upon a material change of circumstances, which can include reaching retirement age.

Spousal support varies from case to case and is highly fact dependent. It is important to discuss the specific circumstances of your case with an experienced attorney. Contact Stiles Ewing Powers to schedule a consultation with a family law attorney today.