Updated By Rich Stim,
Here are the answers to some common questions about spousal support in Virginia.
Spouses can decide on an amount themselves, and include it in their marital settlement agreement. If they don't, a judge will determine the amount of spousal support to be paid, if any.
Yes. Virginia courts can make a temporary spousal support order, which will be in effect until the final divorce decree is issued. This is sometimes called a pendente lite ("during the pending action") support award. The spouses can agree on an appropriate amount, or the court can make that determination based on the spouses' incomes.
If you cannot agree to an amount of temporary spousal support, you and your spouse will each be required to prepare a monthly income and expenses statement. The court will then make an award of spousal support, if appropriate, based on the demonstrated financial need of one spouse and the ability of the other spouse to meet that need temporarily.
If the spouse seeking support is shown to have committed adultery, the court will not award support. However, spousal support is not barred by desertion or cruelty.
When deciding whether to award spousal support and how much, the court considers:
(Va. Code Ann. Section 20-107.1.)
Spousal support, whether ordered by the court or agreed to by the spouses, can be paid in a lump sum or in periodic payments. Payments may be for a set number of years or for an unspecified duration. Court-ordered spousal support ends automatically if either spouse dies or if the spouse receiving support remarries.
A spouse is more likely to receive an award of spousal support with no defined duration if there was a long-term marriage and the spouse seeking support is nearing or at retirement age, or unable to become self-supporting. In shorter marriages, where the spouse seeking support is younger, the court may award spousal support of a limited duration, sometimes called "rehabilitative alimony," to allow the recipient the time and opportunity to complete a degree or carry out some plan aimed at self-sufficiency.
At the time of the divorce, in addition to awarding spousal support, or if spousal support is not warranted at the time, the court may grant either or both spouses the right to request spousal support in the future.
If spouses agree on an amount of spousal support and include that amount in their property settlement agreement, the amount of spousal support cannot be modified unless the agreement allows for later modification. If a judge sets a spousal support award, however, either side may later come back to court and request an increase or decrease based on substantially changed circumstances. Further, the paying spouse is permitted to ask the court to terminate spousal support if the recipient spouse has lived with another person in a marriage-like relationship for a year or more.
If you are worried that your spouse will not pay a support order, or if your former spouse is refusing to pay a valid support order, Virginia law allows the court to enter an income deduction order. That means the court has the power to order that the spouse's employer deduct the appropriate monthly amount from the employee's paycheck and to pay it to the spouse entitled to receive the support.
In Virginia, the person who receives spousal support must declare it as income and pay tax on it. If you pay spousal support, you are entitled to deduct the amount paid from your income for tax purposes. (This is different from child support, which is not taxable income to the parent who receives it and isn't deductible by the parent who pays it.)
Some lump sum payments between spouses may be considered spousal support for tax purposes, while others may be considered payments required to equalize distribution of the couple's assets as part of the divorce. Consult an attorney or tax expert to discuss the distinction.