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Virginia statutory law speaks generally of the criteria that a judge must consider when deciding an alimony case. However, the listed criteria give almost no guidance to the courts when making a determination as to “how much” spousal support is to be paid and “for how long” spousal support should last.
No Absolute Right to Alimony in Virginia:
A key fact is that there is no right or entitlement to spousal support in Virginia. Whether or not a spouse receives alimony is determined on a case-by-case basis.
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 Northern Virginia, spousal support is often negotiated, and sometimes determined, based on what is called the “pendente lite spousal support calculation”. 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
Divorcing spouses need to be aware that the Pedente Lite calculation does not take into account the new changes in Federal tax law since the Tax Cuts & Jobs Act (TCJA) took effect. Divorcing spouses who wish to use the Pedente Lite calculation should consider tax affecting the spousal support amount to account for this post-TCJA issue. A good divorce mediator will be able to help you with this.
In Virginia, the “rule of thumb” is that spousal support awards are often 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, divorcing spouses need to be prepared for discussions -- and even court rulings -- which require permanent alimony. However, even in long-term marriages, Virginia judges, since July 2018, are required to consider many factors related to retirement before making a spousal support award. (VA Code section 20-107.1(F))
Criteria that Virginia Judges Must Consider When Making a Spousal Support Determination:
The following is a comprehensive list, pursuant to §20-107.1 of the Virginia Code, of all the criteria that must be considered, in Virginia, when a court is making an award of spousal support. Though parties are not required to go through this same list when settling their alimony issues outside of court, it is a good idea for divorcing couples to consider these same or similar factors when making decisions on the issue of alimony:
The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce.... In determining the nature, amount and duration of an award pursuant to this section, the court shall consider the following:
- 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;
- The standard of living established during the marriage;
- The duration of the marriage;
- The age and physical and mental condition of the parties and any special circumstances of the family;
- The 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;
- The contributions, monetary and nonmonetary, of each party to the well-being of the family;
- The property interests of the parties, both real and personal, tangible and intangible;
- The provisions made with regard to the marital property under § 20-107.3;
- The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
- The opportunity for, the 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 or her earning ability;
- The 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;
- The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
- Such other factors, including the tax consequences to each party and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce, as are necessary to consider the equities between the parties.
It is important, when drafting a Property Settlement Agreement (PSA), to clarify whether or not an award of spousal support is modifiable or not. If it is modifiable, the terms of that 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)
Most mediation clients discuss, and often implement, very specific terms with regard to their modifiable alimony agreements. They tend not to rely on the broad, default statutory language. Instead, they craft their terms of modifiability to better suit their particular circumstances.
If the award of spousal support is directed by a judge (i.e., not an agreed amount and duration between the spouses in a PSA), that award is always modifiable. The general statutory terms, as set forth above, will apply.
Since July 2018, Virginia courts are specifically directed to view a payer reaching full retirement age (as specified by the Social Security Administration) as a material change in circumstances. (VA Code Section 20-109(F)). The law goes so far as to state that, even if the parties reached agreement in their PSA that the spousal support award was non-modifiable, the spousal support could still be open for modification by a Virginia judge for matters related to the payer’s retirement status.
If divorcing spouses want their spousal support terms, as specified in their PSA, to stick, the Virginia Code states that they need to use this language:
The amount and duration of spousal support contained in this Agreement is not modifiable except as specifically set forth in this Agreement. (VA Code 20-109(C))
TERMINATION OF SPOUSAL SUPPORT:
In Virginia, certain fact patterns revoke a parties’ right to receive spousal support. Those situations are:
(1) Remarriage by the recipient (VA Code Section 20.109(D));
(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 may be considered for termination by the courts. Further, if the alimony-receiving spouse can prove, by a preponderance of the evidence, that the termination of his or her spousal support will be “unconscionable” (a legal term), that spousal support may remain as is (i.e., will not be terminated). (VA Code Section 20.109(A));.
(3) Death of either party (VA Code Section 20.109(D).
WHAT IF THE PAYER DIES:
The best way to protect the alimony-receiving spouse, who is relying on alimony payments to pay the bills, is life insurance. Since July 2017, Virginia judges have been permitted to order that existing life insurance policies be maintained for the benefit of the alimony-receiving spouse as long as that spouse is already a named beneficiary on that policy (VA Code Section 20-107.1:1). In mediation, clients have always been free to protect spousal support with life insurance as long as the terms are agreed and they are within the insurance company’s policy provisions and the law.>