Pendent Lite Formula
The Virginia spousal support calculation is called the “pendente lite formula”. This calculation is used regularly in settling divorce cases in mediation and between attorneys.
The pendente lite formula, Virginia’s alimony calculation, is this:
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- 26% higher earner’s gross monthly income
- - 58% lower earner’s gross monthly income
- Monthly spousal support amount WITH minor children
- 27% higher earner’s gross monthly income
- - 50% lower earner’s gross monthly income
- Monthly spousal support amount withOUT minor children
Used for Settlement Negotiations, but not Trial. Despite the Virginia spousal support calculation’s status as a respected method of determining a reasonable amount of alimony, judges are not permitted to use this formula in a divorce trial. Instead, judges are required to assess spousal support in terms of financial need and a specific list of criteria, which is listed below.
You need to know the pendent lite formula, though, because it is a key negotiating tool. It is understood by everyone in the divorce business as the go-to starting point for alimony-related discussions in a Virginia divorce. States have different formulas, though, and they apply them in different situations. Know how things work in your state before you being negotiating alimony. https://www.custodyxchange.com/topics/research/alimony-in-your-state-appendix.php
4 Key Elements You Need to Know About Spousal Support in Virginia
1) DEFINITION of Spousal Support
Spousal support (also known as “alimony”) is a sum of money, paid by one spouse to the other, usually monthly. Alimony’s usual purpose is to be a temporary financial solution to help the unemployed or underemployed spouse get back on their feet. It is not supposed to be used as a punishment or reward. It is supposed to be based on financial need, only.
2) AMOUNT: Spousal Support Amount & Use of the Virginia Spousal Support Calculation
Though there is no spousal support formula in Virginia that is permitted to be used by the judges, many cases settle at or near the dollar amount shown by the Virginia spousal support calculation (aka the pendete lite formula), which is 26% higher earner’s gross income – 58% of the lower earner’s gross income (with minor children) OR 27% - 50% (no minor children).
In a litigated spousal support case, you will need to be prepared for a wild ride, since Virginia judges are not permitted to use the Virginia alimony calculation. This is where attorneys know they can make a ton of money because it is such an unruly area of the law. If you need financial support, you should consider mediation as an excellent alternative to an attorney-driven (litigated) divorce.
3) DURATION: Time Period for Spousal Support Payments
Spousal support usually starts upon the signing of your settlement agreement (or, in a litigated case, whenever the judge says it is to start). It often lasts around 50% the length of your marriage (e.g., 16 year marriage = 8 years of alimony); but the duration is often tracked with the amount of time it will take for the financially dependent spouse to get back on his or her feet. There is no clear Virginia law that dictates how long a person will get alimony in a Virginia divorce.
4) MODIFICATION: Modifiability of Spousal Support Payments
Spousal support awards can be modifiable or non-modifiable. Modifiability means that, when certain circumstances occur, the amount and/or duration of the alimony award can be changed (modified) if agreed to or ordered by a judge. The modifiability clauses can be specific or general. Non-modifiable alimony means that the amount and duration of the spousal support award cannot be changed.
Material Change in Circumstances, General Modification Clause. Spousal support awards can be generally modifiable. This is usually phrased as alimony being modifiable if there is a “material change in circumstances”. That term is subjective, though, and can cause a lot of trouble in the future. In mediation, most clients do not agree to such a subjective and general modification clause. They don’t want any surprises in the future.
Modification Clauses in Mediation – Inability to Pay, Increase/Decrease in Income. In mediation, most alimony cases have a modifiability clause, but it usually addresses the specific concerns of the spouses. For example, a payer losing his or her job, a payer’s inability to work due to a future disability, a serious downturn in the payer’s economic sector (think: tariffs, Covid, AI).
Other modifiability clauses address the payer and/or the receiver making more/less money during the spousal support payment period. Also, with small business owners, commission workers, and employee who receive bonuses, the spousal support amount can be tracked with the ups and down of the business-owner’s income and, with sales people and employees who earn bonuses, how much commission is earned and the dollar amount of the bonuses.
How Do Virginia Judges Decide on Spousal Support?
In Virginia, spousal support is supposed to be based on needs. The judges are required to address a long list of statutory factors to determine the following:
(1) whether there should be a spousal support award in your case; and, if so,
(2) how much should be paid each month; and, if so,
(3) how long should that alimony be paid.
Below are the statutory (law) factors that Virginia judges must consider before making a spousal support award. You can also see them here https://law.lis.virginia.gov/vacode/title20/chapter6/section20-107.1/
In mediation, we often focus on those same factors; but there is no requirement that we spend time on matters that the divorcing couple finds irrelevant. We pick and choose on a per case basis.
Note that none of these factors include the pendente lite spousal support formula. Remember that the Virginia alimony calculation (the pendente lite formula) is used in negotiations, only, but not in divorce court.
- FinancialNeeds, Resources, and Obligations of Both Spouses
Information to Determine Needs
The court will take a long, hard look at each spouse’s income, expenses, assets, and debts. The attorneys will work in opposition to try and get the best deal for their clients. The collection, study, and presentation of this financial data to the court is time consuming and very expensive.
To the contrary, in mediation, we tend to view spousal support as a vehicle to get both spouses in a good launching position for their new independent lives (versus emphasizing a “win/lose” mentality).A spouse’s projected expenses are often not as important, in mediation, as fitting your budget into the money available for alimony, which is often set at or near the pendente lite formula amount.
Use of Virginia Spousal Support Calculation
Most of my mediation clients do not spend a lot of time on expense reports. Instead, they use the pendente lite alimony calculation (26% higher earner’s gross income – 58% of lower earner’s gross income (with minor children) OR 27% - 50% (no minor children)) and live with the results – with some tweaking -- for a time period that both spouses can agree is reasonable in terms of both spouses getting back on their financial feet following the divorce.
How Your Assets & Debts Effect Alimony Awards
It is also true that courts look at the financial resources of both spouses. That is why we always determine the division of assets and debts before negotiating spousal support. If a spouse is unemployed, for example, but has a big chunk of money from the divorce settlement, he or she is not as strong a candidate for alimony as someone with no assets. Similarly, if a payor has a high salary, but is required to pay all of the marital debt, their alimony payment obligation might end up being smaller than expected.
- Standard of Living During the Marriage
What kind of lifestyle did you have before your marriage broke up? If you end up in litigation, your lawyer will probably argue that you have a right to maintain your pre-divorce lifestyle. Though the law supports this type of argument, it does not usually match with reality. There is only so much money to go around and, with two households now being supported, on the same amount money previously used for only one household, the math just doesn’t work.
- Length of the Marriage and Reason for One Spouse Earning Less/No Money
In a situation where one of the spouses needs spousal support, it is true that the longer the marriage, the longer the alimony duration. The reasoning behind this isn’t really the length of the marriage; but the length of time that a spouse was not in the workforce, especially if there are children. The courts recognize that it is very difficult to build a career after many years of absence from the government/business world.
If there was clear agreement between the parties that it was better for the family for one spouse to stay home, that is a factor that judges consider. This also comes up a lot in mediation. The trouble in these cases is that memories and short and, often times, the working spouse has no recollection of those conversations. However, an agreement to this type of arrangement is often viewed as implied, especially if the stay at home spouse has not been working for many years.
- Age and Health of Both Spouses
The ability to earn income is always at the heart of spousal support negotiations and litigation. Therefore, a spouse’s age and health are huge factors when asking for alimony.
If a spouse has not worked for years, and is in their 50’s, that is almost a surefire case for alimony and lots of it, unless the paying spouse is getting close to full retirement age.
The term “full retirement age” tracks with how the Social Security Administration defines it for that spouse, which is around 67 years old (depending on your birthdate). If the paying spouse is close to full retirement age, that can weigh heavily on how a judge will rule. Most judges do not want to force a 67+ year old person to work if they would otherwise be retiring.
- Child’s Special Needs
In some circumstances, a child’s special needs make it very difficult or impossible for a parent to work. In those cases, the courts often order alimony to be paid so as not to disrupt that child’s caretaking routine. There I no guarantee, however, especially if the working spouse does not make enough money to cover the expenses of two households.
- Contributions to the Marriage
When determining an alimony case, Virginia judges are supposed to consider the contributions of both spouses to the marriage. These contributions include the positives, the negatives, the financial, and the non-financial. Be aware, however, that factors which contributed to the well-being/damage to the marriage are usually not as important, in an alimony case, as financial need.
The types of contributions that are considered in both mediation and litigation, when determining the amount and duration of spousal support, are:
Positive Financial Contributions: These include money earned during the marriage and used to pay for marital, household, lifestyle (to a certain extend), and child-related expenses. Positive financial contributions can also include being a good investor, being a good saver, being frugal, and earning all the money while a spouse went to professional school.
Negative Financial Contributions: These include getting the family in unnecessary debt/overspending, wasting money on gambling/drinking/drugs, not earning any money during the marriage, or earning very little.
Positive Non-Financial Contributions: These include being the primary caretaker for the children, maintaining the house/doing handy work, keeping the house clean, doing the grocery shopping and other errands, cooking meals, maintaining the family calendar, and being in charge of kids’ medical, extracurricular and academic calendars, keeping in touch with extended family members, planning and executing holidays/birthdays, and holding down the fort while the other spouse travels for their job.
Negative Non-Financial Contributions and Adultery: These are the “bad behaviors” that contribute to the end of a marriage, such as adultery, cruelty, and abuse. Virginia law permits a denial of spousal support when it can be proven that the requesting spouse had sex outside of the marriage; but this is not a guarantee, especially if a denial of alimony would land that spouse into poverty or create a “manifest injustice”.
- Earning Capacity
The earning capacity, including job skills, education, training, and present employment opportunities, are very important when a spouse is asking for alimony. This goes for both the paying spouse and the receiving spouse.
Imputation of Income. If a paying spouse could earn more, but chooses to work a lesser paying job, that spouse could be looked at as a higher earner, despite their actual paycheck. This speculative assignment of income is called “imputation”. Income can be imputed to the payer and to the receiver of alimony.
In mediation, I do not see a lot of imputation. Clients in mediation tend to want to deal with real numbers. Mediation clients are more likely to be generous or meager in their alimony offers and demands, as appropriate to the circumstances, while not actually imputing a specific income to either one of them.
Vocational Experts. If you are looking for alimony, and your spouse says that you are just “lazy”, you can expect that your spouse’s attorney will hire a vocational expert to determine what types of jobs fit your education and skills and the availability of such jobs in your area.
If you think, you may end up getting evaluated by a vocational expert, it is usually a good time to start applying for jobs. A stack of rejection letters is better evidence than an academic version of what you “could do” if you just “tried harder”. Of course, you might even get lucky and land an actual job that you love!
Rehabilitative Spousal Support. Sometimes, spousal support is paid during an agreed (or judicially determined) time-period to allow the receiving spouse to earn a degree, acquire a certificate, or just get some experience in the work world. This is often referred to as “rehabilitative alimony”.
Make an Effort and You Might Have an Easier Alimony Negotiation. Remember, too, that many spouses are more willing to pay alimony if they feel that their spouse is at least trying to find employment. This is psychology. Not law. But, I have seen attitudes change in mediation when a payer spouse can see that their spouse is making their best efforts to contribute to their own financial wellbeing.
- Ability to Pay
It is important to remember that, even if the need for support is clear, the court will focus on the financial impact of an alimony award on both spouses. If money is tight, the amount or duration of support might be reduced. In Virginia, judges are not in the business of creating a poverty situation for either spouse.
What If You and Your Spouse Can’t Agree?
If you can’t come to an agreement on your own, the court will step in and make a decision for you based on the factors listed above. But here’s the good news: You don’t have to go to court.
Spousal support, like most divorce issues, can be settled out of court through mediation. A good mediator will help you and your spouse talk through the numbers, understand the law, and come up with a fair and reasonable agreement. It’s faster, less expensive, and far less stressful than litigation.
Key Takeaways
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- Spousal support in Virginia is supposed to be based on financial need and ability to pay —not a fixed formula.
- There is a Virginia spousal support formula. Even though judges are not permitted to use the calculation, you can. The formula is: 26% higher earner’s income – 58% lower earner’s income (with minor children) OR 27% - 50% (no minor children).
- Each spousal support case is unique, which is why alimony is one of the most expensive aspects in a litigated (attorney-driven) divorce.
- If you are unsure whether you are a good candidate for alimony, or you are concerned about having to make a monthly payment to your ex, call me (Robin Graine). I will answer your questions: 571-220-1998.
- I will help you understand your options -- considering the law, tax, and finance of your case -- and help you create a settlement plan that works for both of you.
- I will help you through your spousal support negotiation for a fraction of the outrageous fees charged by the divorce attorneys. I know their tricks. I used to be one. I can help: 571-220-1998.
