Virginia recognizes the need for one spouse to receive spousal support (alimony) from the other in certain situations but not every case. Generally speaking, spousal support is based on income of the parties, the payor’s ability to pay and the recipient’s need. A spouse in need can petition a court for temporary spousal support under Virginia Code Section 20-103. Generally, a temporary spousal support hearing is short and based on W-2 income or tax returns as well as an income and expense statement from both parties. Fairfax County has a formula that is based on the gross income from both parties. Most other counties utilize a need to ability analysis.
Spousal support for a divorce is governed by Virginia Code Section 20-107.1, which gives the court the following 13 factors which the court must consider in making a determination of spousal support.
- 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.
In applying paragraph 1, the Court will look at the need of the recipient and the payor’s ability to pay the spousal support requested. There are times when a party is voluntarily unemployed or underemployed. A party wishing to receive spousal support from a spouse who voluntarily quit a job, was fired for cause, or took a job at a much lower rate than he or she is capable of earning could face a court “imputing income” to the unemployed or underemployed party. In other words, the court will make an assumption as to the earning capacity of a party and award spousal support to the requesting party based on what the other party should be earning. Such a hearing or trial is much more involved. The court can be persuaded by a vocational expert, who can testify what the party is capable of earning, given experience and education or the court could look to past income from a time when the party was working to their capacity.
Once the court decides spousal support and an order is entered directing one party to pay the other, the payor would have to continue to pay spousal support until such time as they could demonstrate there has been a material change in circumstance which warrants a change in support because the payor could no longer afford to pay the court ordered support.
It is important to put on your best case at the full hearing. Once spousal support is set, the court is not inclined to change the figure absent the showing of a material change in circumstance.