Divorce is more than simply the end of a marriage. In getting divorced, you are ending a common lifestyle, combined assets, shared incomes, and the collective dreams of forever that you once shared. You must untangle the complicated threads of a life built together to start two separate lives. For one of you, this may mean working with far fewer financial resources than the other, even in high net worth divorces. In those cases, spousal support may be an option for the lower-earning spouse. How is alimony determined? Do the high value of the assets affect how much support you can receive? Do the grounds for divorce impact support? If you would like answers to these and other questions, an experienced divorce attorney at DiPietro Law Group, PLLC may be able to review your divorce and provide answers relevant to your circumstances. Call (571) 626-7389 to schedule your consultation.
What Is a High Net Worth Divorce?
A high net worth divorce is generally defined as one involving a substantial amount of assets. While there is no fixed number, these divorces often exceed $1 million in liquid assets. These assets are typically high value such as business, real estate, or investments. However, determining the value of those assets can be difficult, and may require expert assistance to assess the asset values.
These divorces may or may not have a prenuptial or postnuptial agreement, which can impact property distribution, spousal support, and other aspects of the divorce. Additionally, the high net worth can have significant tax implications for both spouses.
Is Spousal Support Available in High Net Worth Divorces?
Virginia divorce and spousal support can be complicated. Individuals considering or planning to divorce should understand the types of divorce that Virginia law allows and whether spousal support is available in the kind of divorce they wish to seek.
Two Types of Divorce in Virginia
Virginia offers two types of divorce, only one of which is a legal divorce. The legal divorce is a divorce from the bond of matrimony, which legally ends the marriage. This divorce allows both spouses to remarry. Va. Code Ann. § 20-91 allows four grounds for this divorce:
- Separation for at least one uninterrupted year
- One spouse is convicted of a felony after the marriage
- One party is guilty of adultery, sodomy, or buggery
- Either spouse is guilty of cruelty, desertion or abandonment, or has caused reasonable apprehension of physical injury after one year from the date of such an act
The second type of divorce is a divorce from bed and board. This is not a legal divorce. Instead, this is a legal separation in Virginia. When granted a divorce from bed and board, the couple is still legally married but are legally separated. They cannot remarry, but do not cohabitate and any assets acquired after such divorce from bed and board are separate property. A divorce from bed and board can be merged into a divorce from the bond of matrimony after the spouses have been separated for at least one year. Va. Code Ann. § 20-95 offers cruelty, willful abandonment or desertion, and reasonable fear of physical injury as grounds for a divorce from bed and board.
Types of Spousal Support
There are three primary forms of spousal support in Virginia: pendente lite, rehabilitative, and permanent. Pendente lite is temporary spousal support. This support is typically ordered during a legal separation or while the divorce is going through the court process to allow the receiving spouse to maintain financial stability and may or may not lead to continued support after the divorce is final.
Rehabilitative alimony is also a form of temporary support, but it is provided for a set duration. The intention of rehabilitative spousal support is to allow the recipient to complete their education or training so they can become self-supporting and not require support from their former spouse to maintain a quality standard of living. Finally, permanent spousal support is awarded to spouses who are unable to enter or re-enter the workforce due to health, age, or other factors. This type of alimony typically continues until either one of the spouses dies or the recipient remarries.
Can You Get Spousal Support in Both Types of Divorce?
In both a divorce from the bond of matrimony and a divorce from bed and board, spousal support may be an option for the lower-earning spouse. However, there are several factors that are considered when deciding whether to award spousal support, regardless of the type of divorce or the grounds for divorce. If the divorce from bed and board (legal separation) is merged into a divorce from the bond of matrimony (legal divorce), the spousal support may continue as is or it may be changed if there is a material change in circumstances.
Can You Get Spousal Support in High Net Worth Divorces?
Spousal support can be an option in high net worth divorces. Alimony is intended to ensure that the lower-earning spouse’s standard of living remains close to the standard they had during the marriage. The court aims to ensure a fair distribution of marital property and provide support that meets the needs of the dependent spouse while also acknowledging the earning capacity of both spouses. However, there are several additional factors that are considered when determining spousal support, and merely being a lower-earning spouse does not guarantee that an individual will receive support.
How Is Spousal Support Determined in Virginia?
Virginia considers a number of factors when determining spousal support and outlines these factors in Va. Code Ann. § 20-107.1. The law does not specify whether any factors are considered a priority over others, or whether all are weighed equally. Therefore, individuals may wish to consult with an experienced Virginia divorce attorney at DiPietro Law Group, PLLC, to learn more about how each factor may affect the determination of spousal support in their case.
The factors considered include:
- Length of the Marriage: Longer marriages may have longer periods of alimony, while shorter ones may have shorter periods or none at all.
- Age and Health of Each Spouse: If the lower-earning spouse is nearing retirement or has already retired, or has a disability or chronic health condition that interferes with their ability to work, they may be more likely to receive spousal support. However, if the higher-earning spouse is nearing retirement, already retired, or has disability or chronic health condition that limits their ability to work, the court may decide not to order them to pay spousal support.
- Income Disparity: Simply earning less does not necessarily ensure spousal support. The court considers the size of the income disparity between the two spouses in both determining whether to order spousal support and how much support should be ordered.
- Standard of Living: The court considers the standard of living the couple had during the marriage, as well as each spouse’s standard of living post-divorce based on their earning capacity, the division of assets, and other factors. If the lower-earning spouse would see a significant difference in their standard of living while the higher-earning spouse would not, the court may order alimony.
- Contributions to the Marriage: Financial contributions are considered in determining alimony, but there are many other contributions also considered. These contributions include things such as maintaining the home, raising children, supporting a spouse through school, supporting a spouse’s career, and any other support that contributes to the well-being of the family.
- Financial Needs and Resources: The court also considers each spouse’s financial needs, such as medical bills or child support for children from a previous relationship, and their resources, such as their earning capacity and any income-generating assets they may have or may be awarded in the property division.
- Earning Capacity: Each spouse’s earning capacity is also considered in determining spousal support. Earning capacity can include the individual’s current income, as well as any commissions, bonuses, and other potential earnings they may receive in the future. The individual’s interest in and ability to pay for further education to increase their earning capacity may also be considered. In some cases, the court may order rehabilitative spousal support to assist the lower-earning spouse in furthering their education or using other training or methods to increase their earning capacity and become self-sufficient. These payments would last for a limited period to allow the individual time to complete their education or training, but the payments would end after the set duration, whether the individual has finished or not.
- Prenuptial or Postnuptial Agreements: Prenuptial agreements (agreements signed before marriage) and postnuptial agreements (agreements signed after marriage) may specifically provide a spouse with support or waive their right to support. These agreements can also stipulate other aspects of the divorce, such as indicating specific marital assets that one spouse may keep, defining which debts will belong to which spouse, and how business ownership, investments, or income streams will be handled in a divorce. If the agreement is otherwise legal, a provision that waives the right to alimony will be upheld.
- Property Division: While each spouse keeps their own separate property, the marital assets are divided equitably between them. Both separate property and the marital assets awarded to each spouse are considered in determining spousal support.
High net worth divorces are complicated by tax implications and complex financial structures. As a result, the court may need more time to consider each factor and determine its impact on any spousal support that may be ordered.
How Does Property Division Impact Spousal Support in High Net Worth Divorces?
Property division is one of the factors considered when determining spousal support in high net worth divorces. While it is one of several factors considered, it can significantly impact spousal support. Va. Code Ann. § 20-107.3 provides that the court divides marital assets equitably. Equitable means the assets must be divided fairly, which does not necessarily mean equally.
However, even with an equitable property division, one spouse may have more assets that generate income, such as rental properties or investment portfolios, while the other spouse has more assets that do not generate income. One spouse may have assets that generate income but not know how to manage them to generate that income successfully. The income generated by those kinds of assets may not be enough for a spouse to be self-sufficient. Therefore, while an equitable distribution of property may eliminate the need for spousal support in some high net worth divorces, spousal support may still be necessary in others.
Does Separate Property Impact Spousal Support?
Separate property is not subject to division in a Virginia divorce. This means that each spouse keeps their separate property, which is defined as all real and personal property acquired by an individual before marriage, and any property acquired during the marriage as a gift or through bequest, descent, devise, or survivorship (inheritance). Separate property also includes property acquired during the marriage if separate property was used to acquire it and it was maintained as separate property.
While separate property is not subject to division, it is considered when determining spousal support in high net worth divorces. An individual’s separate property can provide financial resources for them, with the potential to generate income even if only through the sale of an asset. Therefore, the court must consider each individual’s separate property in determining their earning capacity, financial resources, and financial needs.
Does the Grounds for Divorce Impact Spousal Support?
Many states award spousal support based solely on financial factors such as earning capacity, financial needs and resources, income disparity, and length of the marriage. However, Virginia considers a number of factors, one of which can be the grounds used to file for divorce. Specifically, Va. Code Ann. § 20-107.1 states that if the grounds for divorce falls under Va. Code Ann. § 20-91(A)(1), a spouse may not be ordered to pay spousal support. In other words, if the spouse who would have been granted alimony cheated, they are likely to be denied alimony.
However, the adultery must first be proven. This must be done with clear and convincing evidence that sexual intercourse with someone other than the individual’s spouse took place during the marriage. Additionally, even if the adultery is proven, Virginia courts does allow a manifest injustice exception for spousal support. This exception takes into consideration the spouses’ relative economic circumstances and their respective degrees of fault in the marriage to determine whether spousal support may still be appropriate despite the infidelity.
What Can a Virginia Divorce Lawyer Do For You?
High net worth divorces are complex and often take significant time to settle. Because it can take so long, and marital assets cannot be used or sold without court approval until the divorce is settled, you may require financial assistance to maintain your financial stability. A Virginia divorce attorney with DiPietro Law Group, PLLC may be able to assist you with getting temporary spousal support until the divorce is settled. We may also be able to assist with requesting continued alimony after the divorce is finalized. Additionally, we may be able to recommend experts to assist in valuing marital assets, or mediators to help you navigate agreements regarding child custody, property division, or other matters. Call (571) 626-7389 to schedule a consultation in our Fairfax or Leesburg, Virginia offices.
