Whether a spouse is entitled to spousal support (alimony) is one of the more complicated financial issues attorneys and courts must address when a married couple separates and divorces.

Only Applicable to Married Couples

Spousal support is a right in Virginia created by statute that is only applicable to married couples. No spousal support obligation exists between individuals who are not married, regardless of their financial circumstances and the length of time they may have lived together.

Temporary Spousal Support

The law authorizes the courts to award temporary spousal support to be paid during the pendency of the divorce case. This determination is typically made early in the case while the parties and their attorneys are still discovering and working through all the facts relating to the parties’ employment circumstances and finances. If the parties are not able to reach an agreement on temporary spousal support, the court will typically rule on the matter after hearing relatively brief evidence of the parties’ incomes and current living expenses, which is called a Pendente Lite ruling. Often, the court relies upon statutory guidelines defined by Virginia Law that calculate temporary spousal support using a percentage of each party’s gross income.

Final Determinations of Spousal Support

A final determination of spousal support is made at the end of the case when the parties have completed the discovery process and are prepared to present evidence of their complete financial circumstances, including their earning capacities and expected living expenses.

In the final determination of whether spousal support is owed, and if so, the amount and duration of the award, the courts in Virginia must balance the payor spouse’s ability to pay support against the payee spouse’s need for support. In doing so, the law requires the court to consider several factors:

  1. 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;
  2. The standard of living established during the marriage;
  3. The duration of the marriage;
  4. The age and physical and mental condition 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, monetary and nonmonetary, 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;
  9. The earning capacity, including the skills, education, and training of the parties and the present employment opportunities for persons possessing such earning capacity;
  10. The opportunity for, the 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 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. Other factors, including the tax consequences to each party and the circumstances and factors that contributed to the dissolution, specifically any grounds for divorce, must consider the equities between the parties.

The attorneys at Stiles Ewing Powers spend considerable time with our clients discussing the facts of their cases and explaining how those facts may impact a spousal support decision under the statutory factors. Some of these important considerations are:

  • Has a spouse been absent from the workforce while raising children?
  • Is a spouse voluntarily unemployed or underemployed?
  • Does a spouse have health problems that impact his or her ability to earn income to support themselves?
  • Do the parties’ children have any special needs that may impact a parent’s ability to enter the workforce?
  • Did a spouse assist the other spouse in obtaining education or training that substantially improved that spouse’s earning capacity?
  • Will the spouse in need of support receive income-producing assets as part of the division of the marital estate?
  • Are the spouses’ claimed living expenses reasonable?

When a spouse is a business owner, it can be difficult to determine that spouse’s actual income. Our attorneys have experience reviewing financial records and working with forensic accountants and other financial professionals to determine the business owner’s actual income available to pay support.

Under the applicable statute, a court must consider the reasons for the breakdown of the marriage in determining the spousal support obligation. In Virginia, a spouse may be barred from receiving spousal support if that spouse is found to have committed adultery. There are exceptions to this general rule, and the evidentiary requirements are strict. The court may also consider another marital fault (e.g., desertion and cruelty) in determining whether an award of spousal support is appropriate. If the court decides to award spousal support, the law provides that a court may consider marital fault when determining the appropriate amount and duration of an award.

Termination and Modification

The court may award support for an undefined duration or for a defined period. Unless the parties agree otherwise, spousal support terminates upon either party’s death or the payee spouse’s remarriage. A payor spouse may petition for termination or modification of spousal support if the payee spouse cohabits with another person in a relationship analogous to a marriage for more than one year.

The law allows for a spousal support obligation to be reexamined and potentially terminated or modified when the payor spouse reaches the age when he or she is entitled to their full Social Security benefit.

Unless the parties agree that spousal support will be nonmodifiable, the law authorizes the court to modify a spousal support award if there has been a material change in the parties’ financial circumstances. A large percentage of our firm’s practice involves representing clients in support modification matters.

Our attorneys discuss all these issues with our clients throughout the divorce process. Contact Stiles Ewing Powers today to speak with an attorney regarding spousal support.