Spousal Support in Virginia
Virginia law provides various ways to determine the amount and duration of spousal support, depending on whether the case is in the Circuit Court or the Juvenile and Domestic Relations District Court, and depending on whether support is sought to be paid before a divorce or after a divorce.
Spousal Support in a Virginia Juvenile and Domestic Relations CourtIf divorce has not been filed in the Circuit Court, chances are your case is in the Juvenile and Domestic Relations District Court. Filing in this court is typically more friendly to people who represent themselves. It also offers other advantages depending on the circumstances of the spouses.
A formula determines the presumptive amount of temporary (also called "pendente lite") support in the Juvenile and Domestic Relations District Court. The formula is used when the combined monthly gross incomes of the parties do not exceed $10,000. When the parties have minor children together, the presumptive amount of spousal support is 28% of the paying spouse's gross income minus 58% of the receiving spouse's gross income. When the parties do not have minor children together, the percentages change to 30% and 50%. This calculation is called the "Fairfax Guidelines."
Remember, the formula is presumptive, meaning that it is supposed to be the correct amount of spousal support unless shown otherwise. If you have questions about calculating this amount, or which court to file in, it is best to speak with a knowledgeable Family Law Attorney. Although court clerks try to be helpful, they cannot offer you legal advice like a lawyer.
Spousal Support in a Virginia Circuit CourtA spousal support case will typically be in Circuit Court if a complaint for divorce has been filed. There are advantages to having your case heard in the Circuit Court because this court can also make determinations regarding equitable distribution, custody, visitation, and child support, and the Fairfax Guidelines are not presumptive in this court.
In the Circuit Court, there is no presumptive amount of spousal support. Whether support is awarded on a temporary basis or is awarded after a divorce, the court considers 13 statutory factors in determining the amount to award. Although no factor is given greater emphasis by law, the court will often examine the paying spouse's income and expenses, which shows the court his or her ability to pay, and the receiving spouse's income and expenses, which shows the court his or her need for support. The court also reviews the Fairfax Guidelines, but is not bound by that calculation.
In considering whether to award spousal support after a divorce, the court considers what caused the breakdown of the marriage (including adultery, conviction of a felony after the date of marriage, cruelty, reasonable apprehension of bodily hurt, or willful desertion or abandonment of the other) in addition to the 13 statutory factors. A court may not award any support if the court finds by clear and convincing evidence that the party seeking it committed adultery, unless it would constitute "manifest injustice."
How long do spousal support payments last?t may be awarded in periodic payments for a defined or undefined duration, in a lump sum, or in any combination of those.
When and how does spousal support end?By statute and absent a written agreement otherwise, spousal support terminates upon the death of either party, by the remarriage of the party receiving support, and when a spouse receiving support cohabits with another person in a relationship analogous to marriage for one year or more. "By statute" does not necessarily mean automatically and without another court order. If it is court ordered, the paying spouse should ensure support is terminated in a new court order and not presume it terminated automatically. Some parties also make the mistake of agreeing to end support when a court order provides for continued support. Do not make these mistakes because spousal support can continue to accrue, causing a substantial amount of arrearages.
When it is agreed upon in a separation agreement, which is later incorporated into a final decree of divorce, the parties may agree to the termination of spousal support at a future date or upon the occurrence of a future event. Further, the parties may include or exclude the statutory terminating events stated above. For example, the parties may agree that spousal support will continue even if the spouse receiving spousal support gets re-married.
If you are trying to terminate spousal support or someone is trying to terminate your spousal support, it is best to speak with an experienced Family Law Attorney.
Changing Your Spousal Support OrderSpousal support may be modifiable and non-modifiable. When parties agree, they may also agree to make it modifiable or non-modifiable. When a court awards spousal support, both the amount and duration is modifiable.
Getting Spousal Support After a Final DivorceA party wishing to seek support in the future may request that the court reserve his or her right to do so in the final decree of divorce. If it is not expressly reserved in the final decree, that party has likely lost the right to spousal support. If spousal support is reserved in the final decree of divorce, there is a presumption that the reservation continues for half the duration of the marriage, calculated from the date of marriage to the date of separation.