Virginia’s Circuit Courts are no different from you or I; if they do not have to reinvent the wheel, and can get along by borrowing someone else’s wheel instead, they borrow. This is true with calculating spousal support in a Virginia divorce. No single formula exists, nor does the Code of Virginia mandate a particular amount, but the Circuit Courts tend to borrow freely from established norms. The Fairfax Circuit Court, along with a few others, has a spousal support guideline many other courts follow, so it set the norm.
The Spousal Support Formula
The norm? No, Norm is not a guy; we mean only that the Circuit Court of Fairfax has put together a formula — a norm — for decreeing one divorcing spouse must support another if a great economic discrepancy exists between the two of you. Other judges, perhaps in Virginia Beach, Norfolk, or another part of Hampton Roads, can feel free to use Fairfax’s formula or come up with their own way of getting the wealthier spouse to provide financial support after the divorce to the poorer spouse.
Fairfax tells divorcing couples that, if one of you makes 50 percent more than another, the one with the vastly higher earning power will pay spousal support to the other.
The formula gets a little mathy, so we will pick some nice, round numbers. Say Norm and Norma are getting divorced (you knew we’d name one of them Norm, right?). Norm makes $100,000 a year definitely not working for any federal intelligence organization at all and certainly not the NSA, if that’s what you were thinking.
Norma works at Food Lion peeling grapes for picky people. She makes around $20,000 a year, so the two of them make exactly $120,000 (or $10,000 a month in gross income, a magic number as you shall see). Norm makes far more than 50 percent more than Norma, so Norm would pay Norma spousal support (which is only fair in the eyes of the law), but how much?
Fairfax Circuit Court decided the higher breadwinner should pay 30 percent of her or his income, less half the amount of the lower breadwinner’s income. So 30 percent of Norm’s $100,000 is $30,000, reduced by half of Norma’s pay, ($20,000/2 = $10,000), so Norm would pay Norma $20,000 over the year, or $1,667 a month.
These are completely unrealistic numbers, of course, because obviously the NSA would never hire anyone named Norm … and most couples do not have such wide pay disparities.
A more realistic example might be that you make $60,000 and she makes $30,000, so your spousal support would be $3,000 annually (30 percent of $60,000 — $18,000 — minus 50 percent of $30,000, or $15,000), which is $250 a month.
If the two of you do not have a pay differential of 50 percent or more, neither of you will probably have to pay spousal support to the other. Say two other completely randomly named people, Norville and Nora, make $55,000 and $45,000 respectively. Since he makes only 22 percent more than she, Fairfax Circuit Court would likely send Norville and Nora on their way to fend for themselves. The only wrinkle in that is if child support was before the court.
Does Child Support Reduce Spousal Support Payments?
Say Norville and Nora have two adorable children, Ned and Nancy (again, completely random names). Fairfax Circuit Court, like all Virginia courts, takes the protection and care of Virginia’s children very seriously, so it modifies the percentages to take into account child support:
- 28 percent of the higher income (not 30 percent) and
- 58 percent of the lower income (not 50 percent)
The small adjustments are to allow adherence to the Code of Virginia’s child support guiding numbers. Unlike spousal support, the Code of Virginia is very clear on child support.
Pendente Lite & Spousal Support
Every good lawyer loves Latin. In Virginia, a pendente lite hearing (meaning during litigation; while the matter is before the court) can determine temporary spousal support while the divorce proceeds. Fairfax Circuit Court did not pick its numbers from thin air; it based them on the pendente lite formula found in Code of Virginia § 16.1-278.17:1.
If you and your wife do not together make more than $10,000 a month, the 30/50 and 28/58 numbers will apply at least temporarily while you and your wife divorce. If you two make a combined gross income exceeding $10,000 a month, pendente lite numbers do not apply. The judge will determine fair spousal support based on “relevant evidence.”
Court Deviation with “Relevant Evidence”
As the good ol’ Code of Virginia puts it, even if Fairfax Circuit Court laid out its guidelines on vellum with gold-edged pages, no other judge has to abide by the percentages:
“The court may deviate from the presumptive amount for good cause shown, including any relevant evidence relating to the parties’ current financial circumstances that indicates the presumptive amount is inappropriate.”
What “relevant evidence” would the court be looking for, to vary from either the default pendente lite amount or the final spousal support amount? Take your pick:
- Your ex-wife was a stay-at-home mother
- She committed adultery (no support for her!)
- She needs job training to earn a living (rehabilitative support for a given time)
- The high cost of keeping the family home for the sake of your kids (you will pay for as long as she keeps the house, at least)
- She gave up a career or greatly scaled it back for the good of your marriage
To help sort out the many facets of spousal support in Virginia divorce, contact us at The Firm for Men, or call us at 757-383-9184 (please, do not ask for Norm). We can clarify and detail what expenses you will face during, and after, your divorce. We are the only family law firm in Virginia protecting exclusively, and with offices in Virginia Beach and Newport News, you’re just a hop, skip, and jump away from protecting your rights!
