It’s a common misconception that a divorce ends both spouse’s financial obligations to each other. On the contrary, if either spouse will experience financial hardship during or after a divorce, the court can award spousal support, which is a regular payment from one spouse to the other. Spousal support can result from a prenuptial agreement, settlement agreement during the divorce, or a judge’s order. (W.Va. Code § 48-8-101 (a).)
West Virginia laws divide spousal support into four categories:
Temporary support—or spousal support pendente lite—is only available while the divorce is pending. The purpose of temporary support is to allow a dependent spouse to meet financial obligations while adjusting to living on a single income during the divorce. Once the court finalizes the divorce, temporary support orders terminate.
Rehabilitative support is the most common type of spousal support in West Virginia. The court encourages both spouses to seek employment to become and remain financially independent. However, judges also understand that many couples structure their marriages to allow one spouse to stay at home and raise a family or support the other spouse’s career. During the time away from the job market, many spouses lose important education or job skills, which makes it challenging to find employment after a divorce. Judges typically award rehabilitative support for a limited period of time to allow the recipient to become employed. (W.Va. Code § 48-8-105.)
Permanent spousal support is available in cases where one spouse is unable to become financially independent due to circumstances out of the spouse’s control. For example, if, after 25 years of marriage, a husband is 65 years old, unable to work due to a medical disability, and his spouse is a healthy, successful doctor, the court will likely award the husband permanent spousal support to ensure he remains financially stable after the divorce.
Spousal support in gross is a set amount of support, which the paying spouse pays in one lump sum or installments. For example, the court can award $80,000 in spousal support, which the paying spouse must pay in several installments or monthly for a set number of years.
Before the court can begin evaluating spousal support, the couple must prove they are living separate and apart from each other. Couples living together do not qualify for spousal support, regardless of where they are in the divorce process. (W.Va. Code 48-8-101 (c).)
Once a couple is living apart, either spouse can request support, and the court will evaluate the following 20 factors before deciding the type, duration, and amount of the final award:
In addition to the above-listed factors, the law also permits judges to consider and compare each spouse’s fault or misconduct during the marriage as a factor that led to the breakup. Although the court can consider marital fault, like adultery, the judge must consider all the factors equally before creating a final award. (W.Va. Code § 48-8-104.)
Although judges have broad discretion in deciding spousal support, couples who wish to maintain control over the final award can negotiate and present a signed settlement agreement to the court for approval.
Courts can require a supporting spouse to pay in periodic or lump sum payments, or both. Typically, spousal support payments are made from a spouse’s income, but if the income isn’t enough to cover the support award, the court may require a spouse to transfer the title of separate property. The court will never award more spousal support than what the paying spouse can afford. (W.Va. Code § 48-8-103 (a).)
Unless the order states otherwise, either spouse can ask the court to modify or terminate spousal support if there is a substantial change of circumstances after the initial order. A change in circumstances usually involves the loss or increase in a spouse’s income. (W.Va. Code § 48-8-105.)
Remarriage and support. If a recipient spouse remarries, permanent spousal support terminates. Rehabilitative support does not end if the supported spouse’s remarriage is within the first four years of the rehabilitative period, and spousal support in gross does not terminate after remarriage. (W.Va. Code § 48-6-203.)
Death and support. Unless your agreement states otherwise, permanent spousal support ends when either spouse dies. Rehabilitative support only terminates if the recipient dies or if the paying spouse dies and the court determines the deceased spouse’s estate can’t continue to pay. Spousal support in gross does not terminate upon the death of either spouse. (W.Va. Code § 48-6-202.)
Unless you finalized your divorce on or before January 1, 2019, spousal support payments are not tax-deductible to the paying spouse or considered income for the recipient. For divorces before January 1, 2019, paying spouses can deduct payments, and supported spouses must pay taxes on the payments.
It’s important to note that if you finalized your divorce before January 1, 2019, but you modify it later, you may be subject to the new Tax Cuts and Jobs Act that became effective on January 1, 2019. Speak with a local family law attorney if you’re unsure how spousal support impacts your taxes.