Some Factors That Determine Spousal Support
When it comes to spousal support, every situation varies. However, courts will consider a multitude of factors for how spousal support is determined in Virginia, including, but not limited to:
- The financial resources of each spouse.
- How each spouse contributed to the family.
- How the parties divided their marital assets.
- The age and well-being of each party.
- How education and skills impact each party's earning capacity.
Impact of Children on the Amount of Spousal Support
Children play a role in how spousal support is determined in Virginia and how much support will be paid/received. Depending on the age and the physical or mental condition of the child, one spouse may not be able to work outside of the home. In this case, spousal support may increase, as this significantly impacts the caretaker's salary.
Taxes and Spousal Support
Until 2019, when you filed your taxes, how you filed spousal support depended on whether you paid alimony or received it. The payer would file spousal support as a deduction. The recipient would file the support as income. However, the Tax Cuts and Jobs Act (TCJA), enacted by the federal government in 2017, changed this process.
Timing plays a role in whether the payer can file spousal support as a deduction and if the recipient can file spousal support as income. Under the TCJA, you should not file spousal support if the following occurred after December 21, 2018:
- The parties executed the settlement agreement.
- The parties entered the final order of divorce.
- The parties modified a previous settlement agreement.
The Tax Cuts and Job Act in Virginia
When it comes to how spousal support is determined in Virginia, spousal support should be enough to provide the lower-earning party with financial backing equal to their lifestyle during the marriage. However, legal settlements can take a long time and cost a fair amount of money. Thus, pendente lite support exists to help the lower-earning party during the legal process.
Pendente lite support means the high-earning party provides temporary support payments until the parties reach a legal agreement. These payments help the lower-earning party cover living expenses and legal fees.
Pendente Lite in Virginia Before TCJA
Virginia courts have established a system to calculate temporary support payments. However, pendente lite only applies when the combined monthly gross income of the parties doesn't exceed $10,000.
After the enactment of TCJA, the state of Virginia reassessed the process to calculate temporary support. To put it simply, the tax changes to support payments meant each party would pay and receive a different amount. Thus, Virginia courts set out to change the amount paid and received.
Before TCJA, parties with minor children would calculate temporary spousal support as follows: courts subtract 58% of the recipient's income from 28% of the payer's income. For parties without minor children, courts subtract 50% of the recipient's income from 30% of the payer's income.
Pendente Lite in Virginia After TCJA
Virginia's guidelines for temporary spousal support went into effect on July 1, 2020. After this date, parties with minor children began calculating temporary spousal support as follows: courts subtract 58% of the recipient's income from 26% of the payer's income. For parties without minor children, courts subtract 50% of the recipient's income from 27% of the payer's income.
Can You Make Changes to Spousal Support Payments in Virginia?
A few factors determine whether you can make modifications to spousal support payments. Typically, courts allow modifications when the circumstances that initially determined the payment amount have changed. Employment and salary play a role in this.
However, the circumstances need to have changed outside of the payer's influence. For example, courts likely won't allow modifications if the payer quits their job or their employer fires them due to misconduct. However, if the payer loses employment outside of their influence, the court may allow modifications.
Changes to Virginia Law Regarding Modifications
On July 1, 2018, the state of Virginia changed the law regarding spousal support payment modifications. As a result, agreements entered before July 1, 2018, must state that the parties can modify the payments. Otherwise, the court automatically denies modifications.
For those entered after July 1, 2018, the agreement must state that the parties cannot modify the spousal support. Otherwise, the court automatically allows modifications.
Support Payments Without Divorce
In some cases, the parties have not or cannot file for divorce yet. Virginia courts allow you to file for separate maintenance if you've separated but not divorced. Separate maintenance does not correspond with spousal support payments but does provide an option for those who haven't yet divorced.
Can You Terminate Spousal Support in Virginia?
The state of Virginia recognizes a few situations in which you may terminate spousal support.
The Recipient Remarries
When spousal support recipients enter a new marriage, they no longer receive spousal support payments. The recipient holds the responsibility of informing the payer of this life change.
The Recipient Lives With a New Partner
When spousal support recipients live with a partner for a year or more, Virginia courts may consider ceasing support payments. However, the recipient can argue in this situation that the termination of spousal payments would be unreasonable. The recipient spouse must provide substantial evidence for this.
When Either Party Dies
Virginia courts terminate spousal support payments if one of the parties dies. However, judges allow the recipient to protect their payments with life insurance.
For those recipients already listed as life insurance beneficiaries, the life insurance policy can protect them after the payer's death. Before pursuing this option, you'll want to ensure this agrees with the insurance company's policy.
Spousal Support FAQs
How is spousal support calculated in Virginia?
Unlike child support, Virginia law does not provide a specific formula for calculating spousal support. Instead, the judge considers a wide range of factors to determine an amount considered fair under the circumstances. Factors relating to the needs of the spouse seeking support may be the most important.
How long is spousal support in VA?
The duration of alimony payments is also something determined on a case by case basis. Spousal support may be set up to end when a specific event occurs, such as when the divorce is finalized, when the receiving spouse completes a degree program, or within a set number of years. Even if a court orders support to continue indefinitely, it may be discontinued if circumstances change.
Does cheating/adultery affect spousal support in Virginia?
In Virginia, evidence of cheating can lead a court to deny alimony to the guilty spouse. If the court finds that spouse to be in financial need, the judge could still award alimony, but the amount and duration would very likely be less than in other circumstances.
Does Virginia have lifetime alimony?
In rare cases where a spouse is not able to provide their own support due to age, disability or other factors, the court may award permanent alimony where the payments are set to continue indefinitely.
How do I qualify for spousal support in Virginia?
Virginia law specifies several factors that a court should consider when deciding whether to award alimony, but there is no particular threshold for qualification. It is important for a spouse seeking support to ensure that their attorney has full information about the factors that weigh in favor of receiving support, particularly evidence of financial need. Armed with this knowledge, the attorney can either work to negotiate an arrangement with the other spouse or present evidence persuasively to the court to show why it would only be fair under the circumstances to award alimony.
What does the court consider when awarding spousal support?
Despite the popular image of a rich husband paying alimony to a stay-at-home wife, gender is irrelevant to a determination of spousal support, and a spouse may be ordered to pay support even if they are not particularly wealthy.
The court will look at a lot of financial information to determine how much disparity exists between the spouses and how difficult it will be for the spouse seeking support to maintain the lifestyle the couple enjoyed during marriage. If the couple was married for a long time and one spouse put aside career interests to focus on the home, that factor could be used to justify the award of support. The attorney’s presentation of facts can have a tremendous impact on a judge’s decision about the fairness of ordering support.
Does spousal support end when you remarry in Virginia?
When the spouse receiving support remarries, the obligation to provide spousal support ends automatically on the date of the marriage. The receiving spouse bears the duty of informing the paying spouse and if they do not, the paying spouse can collect the amount of the overpayment, along with interest and costs.
If the receiving spouse moves in with another partner for at least a year, the paying spouse can ask the court to terminate the support order and the burden is on the receiving spouse to show why support payments should continue.
Choosing a Lawyer for Your Divorce
Contact an experienced spousal support attorney in Fairfax, Virginia, to get help with your case.
If you’re feeling overwhelmed by the legalities of taking your spousal support case to court, choosing the right law firm can help you navigate how spousal support is determined in Virginia. Call our team of experienced lawyers today at (888) 530-4374.