Spousal support is a payment one spouse pays to help the other avoid financial hardship. Eligibility for spousal support does not depend on gender; either spouse may request support from the other.
Divorcing spouses may agree to the amount and length of payments on their own when they complete their separation agreement. If they can’t agree, however, then a court will award support based on the needs and the economic circumstances of both spouses.
In Virginia, spousal support is not meant to punish a spouse who may have caused the marriage to fail. Nonetheless, a court must consider all of the reasons why the marriage didn’t work out when deciding whether to award payments. If one spouse committed adultery, cruelty, or criminal activity (among other bad acts listed by law), the innocent spouse may be free from any support obligation. In other words, if your spouse cheats on you, then you might not have to pay spousal support.
There is an exception, however. You might still have to pay support if your spouse presents clear and convincing evidence that withholding support would be unjust. For example, a spouse who has no independent income – perhaps a homemaker who has been out of the workforce for a long time – might be awarded child support, even after having an affair, if this spouse has few financial resources. The court will look at both spouses’ respective degree of fault and their economic circumstances. If it would be manifestly unfair to deny the unfaithful spouse’s request for support based on the balance of fault and economics, then the court may order support for this spouse.
Factors Considered for Amount and Duration of Spousal Support
Once the court decides that support is appropriate, it looks to a list of factors to determine the amount of support, how long it should be paid, and how often payments should be made. These factors include:
- the obligations, needs, and financial resources of the spouses, including income from pension, profit sharing, or retirement plans
- the couple’s standard of living during the marriage
- the duration of the marriage
- the age, physical and mental condition of the parties, and any special circumstances of the family
- the extent to which the age or the physical or mental condition of any child makes it appropriate that a spouse not seek employment outside of the home
- the contributions, monetary and non-monetary, of each spouse to the well-being of the family
- the property interests of the parties, both real and personal, tangible and intangible
- how the marital property has been divided
- each spouse’s earning capacity, including skills, education, and training
- the opportunity for and ability of a spouse to acquire the appropriate education, training, and employment to enhance earning ability
- the decisions regarding employment, career, economics, education, and parenting arrangements made during the marriage and their effect on present and future earning potential
- the extent to which either spouse contributed to the attainment of education, training, career position, or profession of the other, and
- any other factors, including the tax consequences, that should be considered to make sure the award is equitable.
The court could order payments to be made on a temporary basis, permanently, or a combination of the two. Also, payments could be made in a lump sum, periodically, or both. Additionally, a spouse could ask the court to reserve that spouse’s right to receive support in the future, but there’s a limit on how long this reservation lasts. Once the court approves the request, the reservation lasts only as long as half the time of the marriage (ending on the date of separation). For instance, a spouse could have the right to request support within five years if the marriage lasted for ten years.
Changing or Terminating Payments
At any time, either spouse can ask the court to increase, decrease, or terminate spousal support payments if there has been a material change in either spouse’s circumstances. Usually, a material change has to do with a change in finances (the loss of a job, for example). The court decides whether to change the terms of support based on the same set of factors used to set the amount and duration in the first place.
Spousal support automatically terminates if either spouse dies or if the recipient spouse remarries. The recipient spouse has a duty to inform the paying spouse of the remarriage.
The paying spouse may also ask the court to terminate payments if the recipient spouse has been living with a significant other for one year. Under these circumstances, the court will terminate payments unless the recipient spouse proves by a preponderance of evidence that termination would be unconscionable.
Virginia follows the IRS structure for taxing alimony. Generally, if you are paying alimony, your payments are tax deductible. If you are receiving alimony, the IRS taxes what you receive as income. There may be some exceptions, however, depending on how payments are made.
You can read the law on spousal support in the Code of Virginia 20-107.1. For changing or terminating support payments, see the Code of Virginia 20-109. The Internal Revenue Service Publication 504, has more information on taxing support payments.