Alimony is a creature of both State and Federal Law: Spousal support, also known as alimony, is governed by a combination of state and Federal law. In Virginia, the state law sets forth the criteria (the full statutory list can be found below, in this article) that judges must consider when determining whether or not to award spousal support in a particular case (§20.107.1 Virginia Code). The Federal Law governs the tax aspects of spousal support -- which are many. This article discusses Virginia Law. (More information on the tax aspects of alimony can be found throughout www.fairfaxdivorceblog.com by entering “alimony tax” in the search bar.)
Virginia Code: Virginia statutory law, which includes the laws you can easily see if you look at the Virginia Divorce Code (Title 20, Chapters 6 and 6.1 (§20-91 through 124.6 of the Virginia Code)), speaks generally of the “considerations” that a judge must ponder when deciding an alimony case. However, the listed criteria gives little guide to the courts when making a determination of “how much” and “for how long” spousal support should last. Those answers are often based in the “common law” (precedential cases decided in higher level courts) and the legal culture and practice in the area in which the clients live.
No Absolute Right to Alimony in Virginia: A key fact is that there is no right to spousal support in Virginia. The right to receive alimony is determined on a case-by-case basis.
Key Issues: Whether the alimony question is determined by a judge, or by the parties themselves, the following issues will always need to be determined:
- Whether or not there will be an award of alimony;
- How much that alimony award will be;
- What is the period of time that the alimony award will last; and
- Whether or not the alimony award will be modifiable in amount and/or duration.
Pendente Lite Spousal Support Calculation: In Fairfax County, the courts are very prone to award what is called the “pendente lite spousal support amount”. The “pendente lite” is a formulaic amount of spousal support which was originally designed as a way of quickly calculating spousal support in pre-trial, emergency situations, without having to go through a full blown “mini trial” on the issue of spousal support.
However, over time, many of the courts (Fairfax County in particular) have come to rely on the pendente lite formula as a fair barometer of what the spousal support amount should be. Of course, this is dependent on whether the case merits an award of spousal support in the first place (which is always the ultimate question).
The pendente lite formula, when there are minor children, follows:
28% payer’s gross monthly income – 58% recipient’s gross monthly income
= pendente lite spousal support calculation
The formula, when there are no minor children, follows:
30% payer’s gross monthly income – 50% recipient’s gross monthly income
= pendente lite spousal support calculation
Duration: In Virginia, the “rule of thumb” is that spousal support awards are usually set for 50% the length of the parties’ marriage (from the date of marriage to either the date of separation, the date the property settlement agreement is signed, or the date of divorce). For marriages over 20 years, there is a possibility of permanent alimony. Oftentimes, however, even “permanent” alimony awards have a stop date that coincides with an educated guess as to when the payer will most likely retire.
Modifiability: It is important, when drafting a property settlement agreement, to clarify whether or not an award of spousal support is modifiable or not. If it is modifiable, the terms of modifiability may be spelled out in detail, or the basic statutory language can be used. The basic statutory language is:
The party seeking the modification is required to demonstrate to the court, by “clear and convincing evidence”, that there has been a “material change in the circumstances of the parties, that was not reasonably in the contemplation of the parties when the award was made, or that an event, which the court anticipated would occur at some stage during the pendency of the award, and which was significant in the making of the award, did not, in fact, occur through no fault of the party seeking the modification. (§20-109(B) of the Code of Virginia)
If a property settlement agreement is silent on the issue of modifiability, there is a presumption that the award is non-modifiable.
To the contrary, in instances where the court itself orders the spousal support award, but the court order is silent on the issue of modifiability, there is a presumption that the award is modifiable.
Spousal support award may be modifiable in amount, duration, or both.
Criteria that Virginia Judges Must Consider When Making a Spousal Support Determination: The following is a comprehensive list of all the criteria that must be considered, in Virginia, when a court is making an award of spousal support (pursuant to §20-107.1 of the Virginia Code). Though parties are not required to go through this same list when settling their alimony issues outside of court, it is a good list for most divorcing couples to ponder when making decisions on the issue of alimony:
(1) The obligations, needs and financial resources of the parties, including, but not limited to, income from all pension, profit sharing and retirement plans, of whatever nature;
(2) The standard of living established during the marriage;
(3) The duration of the marriage;
(4) The age, physical and mental condition of the parties and any special circumstances of the family;
(5) The contributions, monetary and non-monetary, of each party to the well-being of the family;
(6) The property interests of the parties, both real and personal, tangible and intangible;
(7) The provisions made with regard to the marital property;
(8) The earning capacity, including the skills, education and training of the parties, the present employment opportunities for persons possessing such earning capacity, and each parties’ current employment status; and
(9) The tax consequences to each party, as are necessary in order to consider the equities between the parties.
AUTOMATIC TERMINATION OF SPOUSAL SUPPORT: In Virginia, certain fact patterns revoke a parties’ right to receive spousal support, per statute (§20-109 of the Virginia Code). Those situations are:
(1) Remarriage by the recipient;
(2) Cohabitation of one year or more, by the recipient, with another person, in a relationship analogous to a marriage. This fact must be proved, however, by clear and convincing evidence by the payer before spousal support will be terminated for “cohabitation”; and
(3) Death of either party.