This article is a part of our Family Law 101 series.

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Spousal Support Definition

Family law in Virginia provides a legal way for one spouse to pay the other spouse to maintain quality of life and address other issues, known as spousal support.

Spousal Support in the Code of Virginia

Spousal support is addressed in Virginia primarily through the Code of Virginia, rather than through case law. Sections of the Code pertaining to spousal support include:

  • 16.1-278.15. Custody or visitation, child or spousal support generally.
  • 16.1-278.17. Pendente lite support.
  • 16.1-278.17:1. Formula for determination of pendente lite spousal support.
  • 20-103. Court may make orders pending suit for divorce, custody or visitation, etc.
  • 20-107.1. Court may decree as to maintenance and support of spouses.
  • 20-107.1:1. Court may decree as to maintenance of life insurance policy.
  • 20-109. Changing maintenance and support for a spouse; effect of stipulations as to maintenance and support for a spouse; cessation upon cohabitation, remarriage, or death; effect of retirement.
  • 20-109.1. Affirmation, ratification and incorporation by reference in decree of agreement between parties.
  • 20-150. Content of agreement.

Your family law attorney is thoroughly conversant with these sections and can craft an effective argument for you to receive spousal support or, if needed, limit the amount of support you will have to provide to your lesser-earning spouse during separation and divorce.

What is Spousal Support For?

Married couples depend on each other for financial support in addition to other things like companionship, emotional help, and sex. When one spouse earns more than the other, the lesser-earning spouse in a marriage enjoys a quality of life subsidized by the higher-earning spouse.

In divorce, the lesser-earning spouse has a legal right to financial support from the higher earner to:

  • Adjust to a new, possibly diminished quality of life
  • Get help obtaining an education leading to employment and financial independence
  • Maintain a dignified post-divorce life

This financial support is not based on gender. Either spouse can seek spousal support. In Virginia, financial support can be a single payment, monthly payments for a defined goal or time, or monthly payments without a definite end.

Who Spousal Support Helps

Spousal support helps the lesser-earning spouse with all aspects of divorce:

  • Affording an attorney
  • Adjusting to diminished income
  • Maintaining good credit
  • Preserving the marital home or affording a new place to live
  • Learning a marketable skill

The paying spouse may feel spousal support is a punishment, but it is not intended to be one by Virginia’s courts. It is meant to level the legal playing field during and after divorce, so the lesser-earning, more dependent spouse can become independent.

How Spousal Support Works

Not every spouse is eligible for spousal support. In most cases, adultery disqualifies a spouse from receiving any benefits. If a spouse qualifies, the court will determine three variables, written into Virginia Code § 20-107.1:

  • Nature — How the spousal support will be delivered (either as a single lump payment or monthly payments) and for what purpose
  • Amount — How much money the higher earner will pay the lower earner
  • Duration — Spousal support can begin during separation and continue for any amount of time (weeks, months, or years) the court determines to be appropriate

Either spouse may petition the spouse for support through filings handled by the spouse’s attorney. The nature, amount and duration of support can be spelled out in a property settlement agreement, a pendente lite order, or in a final divorce decree.

Property Settlement Agreement

The most favorable terms for either spouse regarding spousal support can generally be achieved through a property settlement agreement. Pendente lite determinations can be unrealistically minimal for the payee (the lesser-earning spouse). A judge’s determination in the final divorce decree can be financially challenging for the payor (the higher-earning spouse).

A property settlement agreement is a good mechanism to provide a fair, equitable arrangement from separation through divorce and for a specified time after divorce. Both spouses can agree on the spousal support’s nature, amount, and duration without the need for a judge’s intervention. Judges defer to property settlement agreements in uncontested and no-fault divorces.

Pendente Lite Calculations

While the divorce is pending, the higher earner can be compelled through a pendente lite order to pay spousal support. If the combined monthly gross income does not exceed $10,000 ($120,000 a year), then:

  • With minor children, the presumptive amount of pendente lite spousal support is the difference between 26 percent of the payor spouse’s monthly gross income and 58 percent of the payee spouse’s monthly gross income
  • With no minor children, the presumptive amount of pendente lite spousal support is the difference between 27 percent of the payor spouse’s monthly gross income and 50 percent of the payee spouse’s monthly gross income

For example, in a marriage with children, suppose the higher-earning spouse earns $84,000 annually and the lesser-earning spouse earns $36,000 annually:

  • The higher earner has a monthly gross income of $7,000 and 26 percent of $7,000 is $1,820
  • The lower earning spouse has a monthly gross income of $3,000 and 58 percent of $3,000 is $1,740
  • The difference of $80 is paid as monthly spousal support from the higher earning spouse to the lower earner

If the two spouses have no children, the numbers look like this:

  • 27 percent of $7,000 is $1,890
  • 50 percent of $3,000 is $1,500
  • The difference of $390 goes from the higher earner to the lower earning spouse

These presumptive amounts can be modified up or down with evidence “relating to the parties’ current financial circumstances or the impact of any tax exemption and any credits resulting from such exemption.”

Spousal Support Factors in Virginia

While you can get a good idea of your spousal support calculation, the Code of Virginia outlines 13 factors a Circuit Court judge uses to determine spousal support during divorce proceedings (in a pendente lite hearing) and after divorce (in the final divorce decree).

The 13 factors shape the nature, amount, and duration of spousal support:

  1. 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;
  2. Standard of living during the marriage
  3. Duration of the marriage
  4. Age and physical and mental condition of the parties and any special circumstances of the family
  5. 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
  6. Contributions — monetary and nonmonetary — of each party to the well-being of the family
  7. Property interests — real and personal, both tangible and intangible — of the parties
  8. Provisions regarding equitable distribution of marital property
  9. Earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity
  10. 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 earning ability
  11. 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
  12. Extent to which either party has contributed to the attainment of education, training, career position or profession of the other party
  13. Other factors — such as tax consequences to each party, circumstances and factors that contributed to the dissolution, and grounds for divorce — that affect equity between the parties.

Can Spousal Support Change?

Spousal support can and does change. Pendente lite spousal support is in effect only for the time the divorce is proceeding from separation through final decree. This is usually between six to 15 months.

An obligation to pay will not change until an attorney files for changes to spousal support, based on one of these reasons:

  • The spouse receiving spousal support to gain an education attains that education and can be financially self-supporting
  • The spouse receiving spousal support remarries
  • An involuntary material change in circumstances occurs, such as the recipient winning a lottery or inheriting wealth, or the payor suffering job loss or reduction in pay

The burden to change spousal support usually falls to the payor, since the recipient has no incentive to stop payments even if circumstances change.

Spousal support cannot be modified if it is based on a marital agreement reached before 2018 or the marital agreement states that spousal support cannot be changed.

The Firm For Men knows a tremendous amount about spousal support, but we also know about all the other family law topics. Please reach out at 757-383-9184 or contact us online to schedule a consultation or learn more about what we offer.