Going through the process of divorce can be challenging, especially if you're worried about making ends meet without your spouse's income. Fortunately, judges in Virginia can award spousal support and maintenance (alimony) to dependent spouses during the divorce process and, if necessary, for a period after finalizing the divorce.
Spousal support is a payment one spouse provides to the other while the divorce is pending and, if necessary, for a period after the judge finalizes the divorce. The purpose of spousal support is to ensure that both spouses can meet their financial obligations and maintain a lifestyle that's as close to the marital lifestyle as possible.
Judges in Virginia can award temporary support while the divorce is pending or post-divorce temporary or permanent support. (Va. Code Ann. § 20-107.1 (C).) Temporary support during the divorce is available to spouses who need financial help from a soon-to-be-ex-spouse while the case is pending in court. The judge will order an amount that will ensure the recipient spouse can make ends meet while waiting for the final judgment.
If a spouse needs support after the divorce, the judge may award rehabilitative or permanent alimony. Rehabilitative is common in families where one spouse left a job to raise a family or support the other spouse's career. The purpose of rehabilitative support is to provide the recipient spouse with the time and financial means necessary to acquire the education or job training required to find employment that will allow that spouse to become financially independent.
Permanent support is rare, but available in Virginia to spouses who, despite their best efforts, are unable to become self-supporting due to disability, age, or absence from the job market.
If you need spousal support, you must request it during the divorce process. Contrary to popular belief, the court does not discriminate against either gender when evaluating spousal support, so either spouse can request it, but must demonstrate a financial need before the court will award support.
Judges will consider the following factors when deciding the type, amount, and duration of any spousal support award:
Judges in Virginia must also consider whether either spouse committed marital misconduct, such as adultery, during the marriage. If the court finds that the requesting spouse is guilty, the judge will deny spousal support. However, it's important to note that the court may award spousal support to a guilty spouse if denying it would cause the spouse financial hardship. (Va. Code Ann. § 20-107.1 (B))
Unlike child support, there's no formula for judges to use when deciding the amount of support for each case. Instead, judges have broad discretion when evaluating the above factors. Couples who would prefer to keep control over the end result of a support award can negotiate the terms and present a settlement agreement for the judge to sign.
If the judge awards temporary support while the divorce is pending, the order terminates when the judge finalizes the divorce.
Rehabilitative, or temporary post-divorce support, is usually short-term and will end on a date ordered by the judge. The court may also set a future event, such as completing a degree program, as the end date. If the supported spouse needs support beyond the end date, that spouse can request that the judge review the order for a possible extension.
Permanent support, unless the court orders otherwise, is indefinite.
Regardless of the type of support in your case, if the supported spouse remarries (or cohabitates), the court will automatically terminate the award. Generally, the same is true if either spouse dies. (Va. Code Ann. § 20-110, Va. Code Ann. § 20-109 (A)(D).)
Judges can order periodic payments (usually monthly), lump-sum payments, or order property transfers to pay for spousal support. If you're worried that your spouse won't pay, you can ask the court to issue an income deduction order, which direct's your spouse's employer to deduct the support amount from the employee's paycheck and pay it to the spouse receiving support. (Va. Code Ann. § 20-79.1.)
Failure to comply with a court order is a serious offense and can result in the court ordering you to pay fines or court costs, seizing your tax returns, or sentencing you to jail.
Possibly. Unless the court order states otherwise, either spouse can request a modification of support if the spouse demonstrates a material change in circumstances that the spouses neither contemplated or anticipated when the court issued the original order. (Va. Code Ann. § 20-109 (B).) The court will review every spousal support case for potential modification once either spouse reaches full retirement age. (Va. Code Ann. § 20-109 (E).)
It depends. If you finalized your divorce on or before December 31, 2018, then payments are tax-deductible to the paying spouse, and the recipient must pay taxes on the income. However, if the judge finalized or modified your support award after December 31, 2018, new tax laws eliminated the tax-deduction benefit and reporting requirements for spousal support.
The Tax Cuts and Jobs Act impacts nearly every spousal support case in the United States. If you're unsure how it will affect you at the end of the tax year, speak with an experienced attorney near you.