Spousal Support Q&A

I have heard that sometimes a spouse has to pay the other one after a divorce on a monthly basis to meet that spouse’s needs. Is this common in Virginia?

Yes.  In addition to distributing property, the court has the authority to award spousal support if it determines that support of one spouse by the other after separation and even after the divorce is necessary.

When does the Court decide spousal support?

This decision is made at the pendente lite hearing based on Virginia Code Section §20-103 or at the final divorce hearing. However, if there is a contract that both people sign which is filed before the final decree (a pre-nuptial or pre-marital, or sometimes a marital agreement), the court will follow what is in that contract as it relates to spousal support / alimony.

Does the Court always award some kind of support?

Not always.  Because an award of spousal support is only made if the court feels that it is necessary, the court must first decide whether to award support in the first place.

How does the Court decide whether it should make an award?

The court looks first at fault and the circumstances and factors leading to the divorce. This specifically includes adultery, cruelty or if one spouse is convicted of a felony and the couple has not lived together after the release. If both spouses have grounds for divorce because of adultery, then neither can receive permanent support, unless the court allows an exception. Exceptions are based on the degree of fault of each person and the economic circumstances of each.

If the Court does award support, how much does it award?

If the court decides to award spousal support, it must then decide the nature, amount and duration. There are several factors which impact the decision. 

The court will look at the marriage, including how long it lasted, the standard of living established during the marriage and the contributions that each spouse made to the marriage. Also, the financial obligations including taxes and resources, including property of each, are considered. Age, mental and physical condition and special circumstances in the family are considered, as well. Finally, the earning capacity of each spouse and the cost of a spouse to improve their earning capacity is considered. This is looked at especially in connection with the choices each made about their jobs, education or parenting during the marriage. Based on these criteria, the court issues written findings about the factors and awards the support in one of four ways: (1) as a lump sum, (2) for a defined duration, (3) for an undefined duration, (4) or in a combination of these. This is completed at the final divorce hearing.

If you have been a dutiful, stay-at-home parent for a 25-year marriage, while your spouse was able to pursue higher educational degrees or employment positions, then the court is unlikely to allow the “working” spouse to walk away from the divorce with no financial obligations – especially if you could not work outside the home, or your earning potential was lower.  Many factors are considered in addition to this scenario, but it is rare when the court allows the spouse who received the paychecks to escape without sharing in the fruits of his or her labor.

Is the Court’s award the final ruling regarding the subject?

No.  Spousal support (and child support) can be changed if there is a material change in circumstances, which allows the court to review and change the award.  For example, if a spouse of the paying spouse loses their job, the court may want to re-evaluate the matter.

If I am getting spousal support, can I remarry?

Yes, but this will automatically terminate your spousal support, without a hearing. Remarriage automatically terminates spousal support and it is the responsibility of the spouse receiving the support to notify the former spouse who is paying the support.

If I want to keep getting my support payments, can’t I just move in with someone and skip the actual remarriage?

You can try, but you will be inviting your ex-spouse to petition the court!  Many others have tried this approach in the past, and the law allows the paying spouse to request termination of the support in such circumstances. If the paying spouse has evidence that the other spouse is in a relationship that is the same as a marriage, mainly that the spouse has been living with someone else for one year or more, the paying spouse can petition the court to end the order of support. If the paying spouse can prove that the other should no longer receive support, it is up to the receiving spouse to prove that it would be unconscionable to end support (i.e., there needs to be a good reason!)

Are there any other occurrences that end spousal support?

If an expected event that was influential in ordering the support does not occur, either the payer or receiver can petition the award to be changed, but the person petitioning cannot be responsible for the event not happening.  For example, ex-wife is to receive monthly spousal support for two years, or until she gets a college degree; if ten years pass and ex-wife has not taken a class toward the intended degree, then the court may allow an end to support obligations.  Also, the death of either spouse ends the spousal support.

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