In addition to custody and visitation, one of your earliest concerns in a divorce will likely be the issue of financial support for the dependent spouse and/or minor children of the marriage, both during and after the divorce proceeding.
If the spouses cannot reach an agreement on this matter, spousal and child support will be determined and ordered by a court, usually in conjunction with issues relating to custody/visitation.
When is the Issue of Spousal/Child Support Addressed?
As with custody and visitation, the court has the power to make determinations as to spousal or child support obligations at any time while a divorce is pending.
In a case pending in the Circuit Court, either party can file a motion, known as a pendente lite motion, asking that spousal support and/or child support be determined relatively early in the case. This is not the final ruling of the Court, but rather a temporary ruling as to spousal support and/or financial support for minor children while the divorce case proceeds.
The amounts ordered in response to this type of early motion will usually continue until the divorce case is finalized, at which time the court will order more or less support as a part of the final divorce decree, based on the facts of the case as they have developed.
If you and your spouse are living separately, and if you don't want or can't file a divorce case in the Circuit Court, you can file for spousal support and/or child support in the Juvenile and Domestic Relations District Court.
Spousal Support in Virginia (“Alimony”)
Under Virginia law, a court may order spousal support, referred to in some states as “alimony,” in a variety of forms—periodic payments for a defined period of time; periodic payments for an indefinite period of time; a single lump sum; or any combination of those.
Virginia courts will not typically award spousal support to a spouse that has been proven to have committed adultery, but like in many other circumstances, there are exceptions to this rule. Very simply put, even if a spouse who is requesting spousal support committed adultery, the court may find it would be “manifestly unjust” to deny that person spousal support. A “manifestly unjust” finding varies depending on the facts of the case and the Judge deciding the matter, but it will have a lot to do with the reasons for the dissolution of the marriage, that spouse's particular financial situation, and the differences in incomes between spouses.
Factors Considered for Support
In a divorce case pending in the Circuit Court there are a number of “factors” the Judge must consider when ordering spousal support and determining an amount. But the primary consideration is oftentimes a comparison of one spouse's need for spousal support and the other spouse's ability to pay spousal support.
The judge will consider the relative incomes of each spouse from all sources, along with the expenses/obligations of each spouse, in deciding which spouse will owe support payments to the other.
Other factors to be considered include:
- 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 monetary and non-monetary contributions of each party to the well-being of the family
- The property interests of the parties, both real and personal, tangible and intangible
- Any decrees of the court made with regard to the division of any marital property
- 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, 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
- Any 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
Amount of Spousal Support in Virginia
Pendente Lite Support
In the case of a pendente lite hearing, where the court is determining the temporary amount of spousal support to be paid until the divorce is finalized, Virginia Juvenile and Domestic Relations District Courts follow a specific formula for determining the amount of spousal support to be awarded. Effective July 1, 2020, a new formula took effect and Virginia Circuit Courts will also follow the same formula when determining temporary spousal support. Primarily in response to the Tax Cuts and Jobs (TCJA) that was enacted on December 22, 2017, the new temporary support formula takes into consideration that the TCJA no longer allows for the deductibility of spousal support payments from a payor's gross income or inclusion of spousal support payments in a payee's gross income for spousal support orders or agreements entered on or after January 1, 2019.
The result of applying this formula is presumed to be the correct amount of spousal support to award in a pendente lite hearing in Virginia, though the court may deviate from that amount for good cause, including the current financial situation of the parties or the impact of any child tax credit provided by law.
Under the new formula, in cases where the parties' combined monthly gross income does not exceed $10,000, the presumptive amount of the pendente lite spousal support award will generally be as follows in Virginia:
- Where the parties share minor children: 26% x payor spouse's monthly gross income – 58% of the payee spouse's monthly gross income
- Where the parties do not share minor children: 27% x payor spouse's monthly gross income – 50% of the payee spouse's monthly gross income
However, Virginia judges are not bound by this formula, and may alter the amount of spousal support they award based on the parties' current financial situation. In cases where the combined monthly income of the spouses is greater than $10,000, the court may still use the above formula as a starting point for determining a spousal support award.
Final Spousal Support Award
In the case of a final divorce decree awarding spousal support, Virginia courts may modify a pendente lite spousal support award to increase or decrease the amount to be paid, depending on the evidence presented by both parties during the divorce trial. If appropriate, the court may also award retroactive support for the period of time that the divorce case was pending, if there was no pendente lite support order in place.
In some cases, a Virginia court may not order support payments for a variety of reasons, but the parties are allowed to request a reservation of the right to receive support in the future.
While this does not guarantee that spousal support would actually be awarded in the future, it does provide a party the ability within a specified period of time after the divorce to file a request for spousal support based on a material change in circumstances that occurred after the divorce was finalized.
Duration of Spousal Support
Virginia statutory law does not provide specific guidelines for the amount of time spousal support will be paid after a divorce is finalized.
However, in determining the duration of spousal support, the court will consider the same factors listed above that are relevant to the case, including, but not limited to, the duration of the marriage, the age and physical and mental condition of the parties, and the amount of time it may take for the spouse receiving support to obtain necessary education or training to obtain gainful employment.
Tax Consequences of Spousal Support
The Tax Cuts and Jobs Act enacted in 2017 permanently eliminated the tax deduction for the payer of spousal support for those who are divorced after January 1, 2019. The Act also eliminated the requirement that recipients of spousal support pay taxes on that support as income.
Material Changes in Circumstance
A court-ordered award of spousal support automatically terminates upon the death of either party, upon the remarriage of the spouse receiving support, or upon the payor spouse presenting clear and convincing evidence that the spouse receiving support has been cohabitating with another individual in a marriage-like relationship for more than one year.
Either spouse can also petition the court for a modification of a court-ordered spousal support award due to a material or significant change in financial circumstances, and the court may increase, decrease, or terminate the amount or duration of the support as circumstances warrant. For example, the payor spouse reaching the full retirement age shall be considered a material change in circumstances.
Virginia law states that, in a pendente lite hearing where the court is determining both an award of spousal support and an award of child support, the spousal support determination shall be made before the child support determination. Once determined, the spousal support amount will then be deducted from the payor's income and added to the payee's income for purposes of determining the child support award.
Virginia statutory law provides a specific table in § 20-108.2 setting out the amounts of child support to be paid based on the parties' combined monthly gross income; the amount indicated on the chart is presumed to be the correct amount to be awarded. However, the court may deviate from the presumptive amount if the specific circumstances warrant, and shall include in its order the specific reasons it has deviated from the presumptive award.
The court will consider the following factors relating to the best interests of the child in determining whether to deviate from the presumptive statutory award:
- Actual monetary support for other family members or former family members
- Arrangements regarding custody of the children, including the cost of visitation travel
- Imputed income to a party who is voluntarily unemployed or voluntarily under-employed
- Any child care costs incurred on behalf of the child or children due to the attendance of a custodial parent in an educational or vocational program likely to maintain or increase the party's earning potential
- Debts of either party arising during the marriage for the benefit of the child
- Direct payments ordered by the court for maintaining life insurance coverage, education expenses, or other court-ordered direct payments for the benefit of the child
- Extraordinary capital gains such as capital gains resulting from the sale of the marital residence
- Any special needs of a child resulting from any physical, emotional, or medical condition
- Independent financial resources of the child or children
- Standard of living for the child or children established during the marriage
- Earning capacity, obligations, financial resources, and special needs of each parent
- Provisions made with regard to the marital property, where said property earns income or has an income-earning potential
- Tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children
- A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support
- Such other factors as are necessary to consider the equities for the parents and children
As with spousal support, in its final divorce decree the court may modify a pendente lite child support award to increase or decrease the amount to be paid, depending on the evidence presented during the trial.
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