It should come as no surprise that spousal support (Alimony) is often a hotly contested issue between a husband and wife during the divorce process. The primary wage earner in the family (a.k.a. the breadwinner) almost never wants to pay support, while the lower wage earner (often the homemaker) usually asks for financial assistance. This disconnect often leads to litigation. In Virginia Circuit Courts, Judges have the express authority to award alimony to a spouse upon their request, which usually occurs incident to a divorce proceeding. Assuming that the parties are unable to reach an agreement on support, Judges will typically conduct a hearing, listen to the evidence, and then look primarily to Virginia Code Sections 20-107.1 and 20-109 to analyze the issue before reaching a decision. If you are in the midst of a divorce that involves the issue of spousal support, it is important that you review these statutes very carefully.
- Note: The standards in Juvenile Court may be different. Look at Virginia Code Section 16.1-287.17:1 which sets forth a formula for temporary spousal support in Juvenile Court (somewhat similar to the child support guidelines).
Statutory Bars to Spousal Support:
- Adultery – if the Court finds you have committed adultery, it is possible that you will be prohibited from getting support.
- Cohabitation – if the Court finds you have resided with another in a relationship analogous to a marriage for a year, you may unable to obtain future support.
- Remarriage – if the spouse receiving support remarries, it may bar future support.
- Death – death of either party will usually bar future support.
Will the Judge Award Spousal Support? Arguing the Factors:
Assuming there is no statutory bar to alimony, the Judge’s decision will usually be guided by the 13 statutory factors from Virginia Code 20-107.1. While all 13 factors are important, Virginia Lawyers often focus a few key factors when analyzing whether support will be ordered:
- Factor 1. “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”.
- Virginia Lawyers often break down this factor to two issues: Need and Ability to Pay. This suggests that requesting party must prove they have a need for support, and the requesting party must prove the other party has the ability to pay support. This issue will often be analyzed using monthly income/expense statements for both parties.
- Factor 2. “The standard of living established during the marriage”.
- This factor has an impact on factor 1. Even if the primary wage earner can afford to pay support if that payment isn’t necessary to allow the requesting party to live a similar lifestyle then a Judge may be hesitant to award support.
- Factor 3. “The duration of the marriage”.
- The shorter the marriage, the more unlikely a Judge may be to award support.
- Factors 9 and 12. These factors involve employment decisions and earning capacity. Issues frequently arise that involve questions about one party's efforts to obtain employment or to earn as much as they are capable of earning.
If the Judge Awards Alimony, For How Long?
Looking at Factor 3 addressed briefly above, the length of the marriage is one of the primary issues that impact the length of alimony payments. It is sensible to assume that longer marriages will yield longer support orders. Significant physical and mental conditions of the parties and/or their children in common can also have a significant impact on the length of support. As this article is not intended to offer legal advice, it is important to speak with a skilled Family Law Attorney to discuss the issues pertinent to your case. If you have questions about spousal support, the experienced Family Law and Divorce attorneys at BoykoNapier can help. Our attorneys handle cases throughout Central Virginia, including Richmond, Henrico, Chesterfield, and Hanover. Call us to schedule a consultation at (804) 658-3418 or contact us via email.
