Spousal Support and Alimony in Virginia

“Spousal support” is the modern term for what was traditionally called “alimony”. Alimony reflected older, gender-based concepts where husbands supported ex-wives. Today, spousal support is gender-neutral, reflecting a focus on financial need after divorce regardless of the parties’ genders.

What purpose is spousal support intended to serve in Virginia?

The purpose of spousal support in Virginia remains a subject of ongoing debate and evolution. Despite some legislative progress over time, courts often seem to grapple with the precise rationale underlying spousal support awards, or provide inconsistent explanations at best, and the appropriate method for weighing the relevant factors. This lack of consensus presents both challenges and opportunities for legal practitioners.

The absence of a clearly articulated purpose in the statutory framework contributes to a degree of ambiguity and inconsistency in court rulings. Furthermore, Virginia’s appellate courts have offered limited guidance, often relying on the “abuse of discretion” standard and affirming trial court decisions. This lack of clear direction necessitates a nuanced approach from experienced attorneys.

In navigating this complex landscape, experienced divorce lawyers draw upon their knowledge of prevailing theories and statutory factors to construct persuasive arguments tailored to their client’s specific needs and objectives. A comprehensive understanding of the evolving legal landscape in this fertile area of the law empowers attorneys to effectively represent their clients and advocate for fair and equitable outcomes. You are invited to take advantage of a free consultation if you would like to discuss how spousal support laws and case decisions might apply in your case. It’s one of my favorite divorce law topics.

Spousal Support is one of the most challenging issues in a divorce.

Spousal support (also known as alimony) is a common point of contention in Virginia divorces, and with good reason. Predicting the exact amount awarded is incredibly difficult.

Why the uncertainty?

Unlike other aspects of a divorce, spousal support awards are more “art than science.” Judges have wide discretion, considering various factors like income, length of marriage, and need. This makes it challenging to predict a specific dollar amount beforehand.

The outcome becomes a complex negotiation where both sides leverage the uncertainty. Attorneys representing the payor (the spouse paying support) may push for lower amounts considering the wide range of possibilities. Conversely, attorneys for the payee (the spouse receiving support) may argue for higher amounts based on the same uncertainty.

Experience matters: A knowledgeable attorney with local court and judge familiarity is equipped to navigate this complexity and advocate for your best interests, whether you’re the payor or payee.

There is a lot of misinformation and misunderstanding surrounding spousal support in Virginia (and elsewhere). The only honest assertion an attorney can make is that spousal support awards are highly dependent on the facts and circumstances in each individual case. In other words, “it depends”.
Brian R. Moore, Lynchburg Divorce Attorney

Despite the lack of predictability, there is a legal framework for determining spousal support awards in Virginia.

Spousal support decision-making involves a 2-step process.

Step 1: Decide whether or not to award spousal support to either party
Step 2: If the answer to Step 1 is “Yes”, then decide the amount of spousal support, including how it is paid as well as when or if it will terminate.

Step 1: Determining whether to award spousal support:

The first step in decision-making wit regards to spoual support in Virginia derives from Virginia Code § 20-107.1(E). This statute states:

“The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision A (3) or (6) of § 20-91 or § 20-95.”

Spousal support isn’t guaranteed in every divorce. While the law doesn’t specify exact circumstances, it does mention considering “factors that led to the marriage’s dissolution.” This broad statement allows for arguments from both sides, adding to an already subjective process with unpredictable outcome potential.

However, there are one situation where spousal support is rarely awarded:

Adultery: Generally, the spouse who committed adultery isn’t eligible for support, except in rare cases where denying support would result in a “manifest injustice” based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties. Here is a blog article I wrote regarding recent developments in the case law on “manifest injustice”. Divorce attorneys can’t stop talking about it to bored family members and neighbors.

If a potential bar to spousal support is a potential issue in your Virginia divorce, please take advantage of my free phone consultation to confidentially discuss the matter.

Step 2: Determine the form, amount and duration of the spousal support award

If a decision to award spoual support is reached under Step 1 then the next step is to determine the form, amount, and duration of the spousal support award.

The “form” of spoual support to be awarded:

There are 3 primary forms of spousal support that a court may award:.

Periodic payments for an undefined duration: A party is ordered to pay a fixed amount on a regularly recurring basis with no pre-determined end date.
- Example: “Wife is ordered to pay Husband $5000.00 per month, indefinitely, until the award is modified or terminated by a future court order.”
Periodic payments for a defined duration – A party is ordered to pay a fixed amount on a regularly recurring basis with a pre-determined end date.
- Example: “Wife is ordered to pay Husband $5000 .00 per month for 10 years.”
Lump sum award – A party is ordered to make a single amount on or before a specific date with no further obligation to make additional payments in the future.
- Example: “Husband is ordered to pay Wife $100,000.00 as lump sum spousal support within 6 months of the date of divorce.”

These forms of support may also be combined: A court may combine these 3 forms to create other alternatives. For example: “Husband is ordered to pay Wife $3000.00 per month for 5 years and a lump sum amount of $250,000.00 within 5 years of the date of divorce.”

The “amount” and “duration” of a spousal support award:

Courts are required to consider specific factors when determining spousal support. However, courts have significant discretion in how they weigh each factor in each case. This is a common cause of disagreements during attempts to negotiate the amount and duration of spousal support prior to submitting the issue to a court for determination.

Here’s why:

The law doesn’t dictate a specific formula for weighing each factor.
Different judges might interpret the factors differently.
This flexibility opens the door to creative arguments regarding clients’ positions in negotiations and in at trial.

The factors to be considered are set forth at Virginia Code § 20-107.1:

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;
The standard of living established during the marriage;
The duration of the marriage;
The age and 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, as are necessary to consider the equities between the parties.

A closer look at a few of Virginia’s spousal support decision-making factors:

In Virginia, courts consider 13 factors when deciding the amount and duration of spousal support. These factors are diverse, ranging from financial aspects to the length of the marriage and the age of both spouses.

The key takeaway? No single factor takes priority. The weight given to each factor depends entirely on the unique circumstances of each case. This allows judges to tailor the award to achieve fairness (“equities”) between the spouses.

As the Virginia Court of Appeals stated: “[each factor] is only one piece of the puzzle… with the court empowered to consider ‘such other factors … as are necessary.'” (Robinson v. Robinson, 2009).

This complexity highlights the importance of legal guidance. An experienced attorney can help you navigate these uncertainties and advocate for a spousal support award that reflects the specific details of your situation. Please take advantage of my free phone consultation to confidentially discuss the how the spousal support factors may apply to your divorce.

Spousal Support in Virginia Factor #1: Obligations, Needs and Financial Resources

This factor requires the court to consider several aspects of each spouse’s financial situation:

Obligations: These are your monthly financial commitments, like mortgage payments, rent, and bills. Gather your monthly statements and any evidence of upcoming liabilities.
Needs: These are your essential expenses to maintain a reasonable standard of living. Courts consider income and obligations to distinguish needs from wants, which can be subjective.
Financial Resources: This includes all income sources, including salaries, pensions, and retirement plans. This is crucial because future income streams like retirement benefits can impact the need for ongoing spousal support.

Key Takeaways:

Spouses seeking limited support may emphasize the other spouse’s future retirement income as a potential source of future financial security.
Inheriting significant assets or having investment income could also affect your financial needs.
Owning a house with high equity could be sold to meet current needs or reduce living expenses in the future.

Remember:

This is just one of 13 factors considered in spousal support decisions.
Consulting an attorney can help you navigate this complex factor and present your situation effectively.

Spousal Support in Virginia Factor #2: Standard of living during the marriage

Understanding “Standard of Living”:

This factor builds upon the first one by considering the lifestyle you enjoyed before separation. It goes beyond simply looking at income and expenses.

What evidence is relevant?

Shopping habits: Did you buy groceries at high-end stores or budget-friendly ones?
Entertainment: Did you take luxurious vacations or staycations?
Material possessions: Did you own luxury cars or more modest ones?

It’s important to be honest:

Inflating your past lifestyle to secure more support can backfire if exposed.
Claiming your pre-divorce lifestyle was unsustainable may weaken the argument for high spousal support.

Maintaining the standard of living:

It’s rare for both spouses to maintain the same lifestyle post-divorce.
Shared income previously supported one household, but now needs to support two (at least initially).
Exceptions are possible if one spouse is deemed innocent of wrongdoing (e.g., adultery) and the other was financially responsible for the pre-divorce lifestyle.

Remember:

Judges have discretion in how they weigh this factor.
It’s a misconception that the receiving spouse must be maintained at the pre-divorce standard.
Other factors like fault and work capacity also play a role.
Strong evidence and persuasive arguments regarding this factor are crucial.

While complex, this factor is often central in spousal support discussions due to its connection to other factors. Consulting an attorney can help you navigate this complexity and effectively present your case.

Spousal Support in Virginia Factor #3: Duration of the Marriage

What is it?

The “duration of marriage” refers to the time between your wedding and separation. In rare cases, a long period of cohabitation before marriage might be considered.

How does it affect the decision?

Judges use this factor in two main ways:

Estimating support duration: Longer marriages may justify longer support periods, while shorter ones might warrant shorter support or only a lump sum payment.
Assessing need: In longer marriages, a spouse who gave up career opportunities may be seen as more deserving of support due to lost earning potential. This is less likely in shorter marriages.

Impact on support type:

Long marriages: Often lead to arguments for spousal support with no set end date (favored by the dependent spouse).
Short-to-mid-length marriages: Often lead to arguments for support with a set end date or a lump sum payment (favored by the paying spouse).

Key points:

Don’t confuse the “rebuttable presumption” of half the marriage length for support with a guaranteed right to such duration.
The duration can be used to support various arguments depending on the case and each spouse’s goals.
Skilled attorneys can creatively use this factor to persuade the court in their client’s favor.

Remember:

Consultation with an attorney is crucial to navigate the complexities of this and other factors in your specific case. Feel free to take advantage of my free phone consultation if you would like to discuss how the duration of your marriage may affect any spousal support award.

A brief history of spousal support in Virginia divorce law

“Spousal Support” (which was called “Alimony” at the time) was first established by English ecclesiastical courts to provide support to wives incident to divorce. Under ecclesiastical law, marriages were indissoluble. Separations (referred to as divorce a mensa et thoro (divorce from bed board)) were available but the husband’s duty to support the wife was an ongoing obligation of the marriage.

What we commonly think of as a divorce today is technically known as an “absolute divorce” (divorce a vincula matrimonii). This complete divorce did not emerge as an option to wedded couples until the mid-1800s. Absolute divorce is a complete legal termination of the marriage. All duties owed between spouses are terminated except as otherwise ordered by the court. Initially, absolute divorce was only granted in the case of adultery. Then, as now, adultery worked as an absolute bar to a spouse’s right to receive spousal support except in the rarest cases.

Over time, absolute divorce evolved into its modern form and now it is the most common type of divorce granted. Despite this progression, court’s for a long time retained the notion of a husband’s duty to support the wife except in cases of adultery. One reason often used to explain this was established gender roles in society that were hard to shake off (and arguably still a part of modern culture).

As societal attitudes toward absolute divorce softened, alimony analysis became an inquiry into the husband’s ability to pay support balanced against the wife’s need for support. Still the purpose of alimony remained link to obligations arising as the result of the marriage and the husband’s duty to support the wife despite the fact that an “absolute divorce” had occurred.

Fortunately, times have changed and outdated, gender prejudices are fading. But one does not have to reach too far back into the case law to find remnants of the antiquated world view that saw husbands as obligated to support wives for life and wives as incapable of taking care of themselves without such support. As written, the current laws regarding spousal support are gender-neutral. However, it can be argued that the paradigm shift remains incomplete.

The United States Supreme Court affirmed gender neutrality within the marriage in Orr v. Orr (1979) wherein the Court held that a statutory scheme in Alabama that imposed alimony obligations on husbands but not on wives was an unconstitutional equal protection violation:

“gender based classifications cannot be justified on the basis of “archaic and overbroad generalizations, old notions, and role typing which lead to the conclusion that the wife is dependent and the husband has the primary duty of supporting the family.”

There have been other significant advances in the law to match modern notions of marriage and marital roles. However, for some reason, the key component that is missing in modern spousal support law (in Virginia) is a clear statement of the purpose for which spousal support is to serve. This is not to say that Virginia law has failed to evolve to meet changing societal norms in the marital relationship. The problem is that our laws are still too wide open for interpretation on the subject. As a result, spousal support is hotly-contested in many divorce cases.

A look at the interplay between the development of spousal support case law and statutes passed by Virginia’s General Assembly illustrates the trajectory (and slow pace) of these developments.

In 1975 the Virginia General Assembly codified accumulated case law in Virginia Code 20-107 wherein six factors were listed for the court to consider when formulating a spousal support award. (it is worthy of note that “alimony” as a term was abolished and replaced by the gender neutral “spousal support and maintenance”). This first attempt at codifying spousal support law reflected the accumulation of common law cases directed toward the analysis of each spouse’s need and ability to pay. The presumption of a wife’s entitlement to alimony was conspicuously absent. The burden was now on each spouse to prove the need, or lack thereof, for spousal support.

In 1977, two more factors were added. The first required the court to consider the “contributions, monetary and non-monetary, of each party to the well-being of the family,” and the second required the court to consider “the property interests of the parties, both real and personal, tangible and intangible”. These new factors required courts to consider contributions by each spouse that could not be directly measured in dollars. Other commentators have noted how attention was being drawn to the value of homemaking as a legitimate contribution to the marriage.

The 1977 amendments also made additional payment options available to the court to use in its order for a spousal support award by adding the “lump sum” option. The “lump sum” option provided a device for compensating a spouse for contributions to the marriage. It provided an alternative to prior modes of analysis that only considered post-divorce need. Still, there was no expression of the exact purpose spousal support in intended to serve.

The last and latest substantive amendments to the spousal support section of the Code occurred in 1998. The current version, recodified at Virginia Code 20-107.1 now contains 13 factors for the courts to consider, including a catchall, and a right of reservation of support by the court that may last up to one-half the length of the marriage. Trial courts are also now required to provide written explanations for their support awards. There is still no clear declaration of purpose. In fact, the variety of factors available to the trial court almost ensure inconsistency in the purpose for which spousal support is awarded.

Modern theories of spousal support

A number of theories of spousal support are discussed in legal theory literature. Many are frequently relied upon by attorneys who do not even recognize the theory they are employing in a particular case. Sometimes this leads to contradictory positions in other arguments they use during a divorce proceeding. The most interesting theories are those that sound good but when examined closely lead to unjust or preposterous results. The most common ones involve spousal support premised upon a contract theory of marriage. If you are interested in learning more about these theories please email me and I would be happy to share any part of my huge collection of journal articles and other resources on those topics. Here are links to a few of the better resources, many of which I rely on in developing this page: The Theory of Alimony (California Law Review), Current trends in alimony law (American Bar Association), Problems with division of property and alimony in the USA.

In brief, some of the more popular theories included spousal support premised upon theories of: reliance interests, restitution interests, post-divorce need, unjust enrichment, partnership laws, detrimental reliance, rehabilitative alimony, etc. Elements of each of these theories may be used in crafting arguments and evidence for a particular spousal support case.

Amongst legal scholars the national consensus on spousal support appears to be that its purpose is to prevent unfairness by forcing ex-spouses to share all of the economic gains and losses produced by the marriage but realized after the divorce. This approach arguably fills the gap left by our current equitable distribution statute by addressing the economic consequences of the marriage that have nothing to do with the marriage and that appear long after the final decree of divorce is entered. The best “theory” (in my humble opinion) under this perspective is the “unjust enrichment” approach to spousal support.

The theory of “unjust enrichment” as applied to spousal support analysis brings with it a large body of case law from which courts may draw from in support of their reasoning and decisions. It severs modern spousal support completely from its historical attachment to the husband’s obligation to support his wife after a divorce. It also eliminates consideration of post-divorce need, which I think is a vestige of archaic gender-based thinking and the cause of much inequity in modern spousal support decisions.

Concluding remarks on spousal support in a Virginia divorce.

It is apparent how important a role the case law plays when there are so many factors for a court to consider. The way these factors are presented and argued at trial can have a tremendous impact on the final spousal support amount, if any. A successful case requires careful planning and strategy performed by an experienced divorce litigator.

If spousal support is contested in your divorce, it is highly advisable that you seek legal representation by an experienced divorce and spousal support attorney. Start with a free consultation