How is spousal support determined?
Spousal support can be determined by the parties through a settlement agreement, or a judge can determine the amount of spousal support to be paid, if any, if a case goes to trial.
Can I receive spousal support prior to a final settlement or court date in my case?
Yes. Virginia permits pendente lite spousal support to be awarded. Pendente lite spousal support is a temporary support amount which will be effective until a final disposition in the case. The parties can jointly agree to an appropriate amount, or the court can make that determination based on the respective incomes of the parties. If you cannot agree to an amount of pendente lite spousal support, each spouse will be required to prepare a monthly income and expenses statement which reflect's their monthly income and expenses. The court will then make an award of spousal support, if appropriate, based on the demonstrated need of one spouse and the ability of the other spouse to pay support to meet that need on a temporary basis. The Fairfax County courts use a formula based solely on the parties' respective incomes as a guideline to help the judge decide what an appropriate amount of temporary spousal support would be. The Fairfax formula is: 30% of the payor's gross monthly income, less 50% of the payee's gross monthly income. If the payor will also be paying child support, the formula is: 28% of the payor's gross monthly income, less 58% of the payee's gross monthly income. The Fairfax formula is just a "rule of thumb;" it is possible for your attorney to argue that it should not be applied by the court in your particular case.
Can spousal support ever be barred?
Spousal support may be barred by proof of adultery on the part of the person seeking spousal support; however, spousal support is no longer barred by desertion or cruelty.
What are the factors that go into an spousal support determination?
The factors taken into consideration by the Court when deciding whether to award spousal support and the amount of such award include:
- The earning capacity, 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;
- The education and training of the parties and the ability and opportunity of the parties to secure such education and training;
- The standard of living established during the marriage;
- The duration of the marriage;
- The age and physical and mental condition of the parties;
- The contributions, monetary and non monetary, of each party to the well-being of the family;
- The property interest of the parties, both real and personal, tangible and intangible;
- The provisions made with regard to the marital property; and
- Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
Can I get permanent spousal support?
Spousal support, whether ordered by the court or agreed to by the parties, can be paid in periodic (i.e., bi-weekly or monthly) payments for a set duration, such as four years; periodic payments for an unspecified duration; in the form of a lump sum award; or any combination of the above. Court ordered spousal support terminates automatically upon the death of either spouse or the remarriage of the spouse receiving support. A spouse is more likely to receive an award of spousal support with no defined duration, where spousal support will continue until death of either party or remarriage, if there was a long term marriage and the spouse seeking support is nearing or at retirement age, or unable to become sufficiently employed to provide their own support. In shorter marriages, where the spouse seeking support is younger, the court may award spousal support of a limited duration, sometimes referred to as "rehabilitative alimony," to allow the recipient spouse the time and opportunity to complete a degree or carry out some plan aimed at securing self-sufficiency. At the time of the divorce, in addition to awarding spousal support, or in cases where spousal support is not warranted at the time, the court may grant either or both spouses a reservation to request spousal support in the future.
How can the amount of spousal support be changed in the future?
If spousal support is set by agreement of the parties in a Property Settlement Agreement (instead of a Judge), unless there is a provision allowing for later modification, the amount of spousal support can never be modified. If a Judge sets a spousal support award, either side may later petition for an increase/decrease upon a showing of substantially changed circumstances. Further, a payor spouse is permitted to petition the court for termination of spousal support in cases where the recipient spouse has cohabited with another person in a relationship analogous to marriage for a year or more.
How do I enforce a support order?
If you are worried that your spouse will not pay a support order, or if your spouse is refusing to pay a valid support order, Virginia law allows for an income deduction order to be entered by the court. A Virginia court has the power to order that the spouse's employer deduct the appropriate monthly amount due from the employee's pay check and to pay that amount to the spouse entitled to receive the support.
Who pays taxes on spousal support - the payor spouse or the payee spouse?
In Virginia, the person who receives spousal support must declare the support as income and pay the taxes on such income. The party who pays the spousal support is entitled to deduct the amount paid from their income for tax purposes. Some lump sum payments between spouses may be considered spousal support for tax purposes, while others may be considered payments required to equalize the assets of the parties' being distributed between the parties incident to the divorce. You should consult an attorney to discuss the distinction.