If you want to have your name remembered for posterity, consider entangling yourself in a courtroom drama. Let’s build the worst possible case: a veteran, disabled by dedicated service to our country, suffers the disintegration of his marriage. His divorced wife sues for spousal support. This is neither a country song nor a Hallmark channel movie. This is a legal nightmare for many Virginia men.
The Basics of Spousal Support
In Virginia, either spouse may be required by the Virginia Circuit Court overseeing a divorce to pay the other spouse financial support. This is all laid out very tidily in the Code of Virginia, § 20-107.1, with some minor modifications to the law taking effect January 1, 2021.
In a legal nutshell, the former spouse with the higher annual income will pay something to the lower-earning spouse so that the life changes from marriage to divorce do not completely uproot the spouse. These payments may “be made in periodic payments for a defined duration, or in periodic payments for an undefined duration, or in a lump sum award, or in any combination thereof.”
Let’s say you earn $50,000 annually (roughly $4,200 monthly) and your divorced spouse earns $35,000 annually (roughly $2,900 monthly). You make more. You may have to pay her something. The exact amount and duration depends on several factors, such as:
- Do you have kids?
- How long were you married?
- Can she boost her earnings if she gets more education?
Generally, and acknowledging that every situation is unique, spousal support with no children is the difference between 30 percent of the monthly gross income of the paying spouse (that’s you) and 50 percent of the monthly gross income of the recipient (that’s your ex-wife). In our example:
- $4,200 x 30 percent = $1,260
- $2,900 x 50 percent = $1,450
- $1,450 – $1,260 = $190
You would pay her $190 a month. If you have kids, that support is the difference between 28 percent of your monthly gross income and 58 percent of your ex-wife’s monthly gross income, assuming you pay her. In our example:
- $4,200 x 28 percent = $1,176
- $2,900 x 58 percent = $1,682
- $1,682 – $1,176 = $506
You would pay her $506.
What is Spousal Support For?
In either situation, with or without children, spousal support is not the receiving spouse’s primary income. It can be used to advance her education, clear up debts, or start a college fund for the children. Most Virginia men immediately recognize that the divorced spouse is not rolling in bon-bons and diamonds because of spousal support.
Important, too: spousal support generally is paid for a defined duration not to exceed 50 percent of the duration of the marriage from wedding day to date of separation. Married 20 years? Pay for 10. Married 6 years? Pay for three.
Basics of Disability Benefits
Veterans disability benefits are considered income in Virginia. The benefits are not divisible the way military pensions are, but they are income. All sources of income are captured in calculating both spousal support and child support:
- “Income” includes earnings or other periodic entitlements to money from any source and any other property subject to withholding for support under the law of the Commonwealth.
- C. For purposes of this section, “gross income” means all income from all sources, and shall include, but not be limited to, income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits except as listed below, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes or awards.
This means that disability benefits are income for purposes of calculating your obligation to pay spousal support if you have higher monthly income than your ex-spouse.
Alwan v. Alwan
Adel Elias Alwan and Aylin Tunc Alwan are now part of the legal canon because their Virginia Court of Appeals case affirmed that disability benefits are income and can be considered when determining spousal and child support.
Adel Alwan is a disabled military veteran receiving disability benefits and his attorney unsuccessfully claimed those benefits were beyond Virginia’s reach due to the Supremacy Clause of the U.S. Constitution. Not so, both the lower and Appeals courts said, and thus Alwan v. Alwan are now enshrined in case law, whether they like it or not.
While this may not be the news our disabled Virginia military men want to hear, it does help with planning for separation and divorce. Factor in your disability benefits and compare your monthly income to your separating spouse’s. For you to avoid paying spousal support, her income must exceed yours.
Spousal support is only one aspect of family law in Virginia. When you need experienced, dedicated, and compassionate legal representation, turn to The Firm For Men. Contact us today or telephone our Virginia Beach office at (757) 383-9184. We specialize in helping to protect and preserve the rights of Virginia’s men.