Spousal support, also known as alimony or maintenance, is monetary support paid to the more financially-challenged spouse who, at the time of the divorce, is unable to adequately meet his or her financial needs.

This is not to be confused with the division of marital assets which can only be divided by agreement and/or by the court through a final order of divorce. Instead, spousal support is paid using the paying spouse’s separate property, such as, earnings post-separation or a separate savings account.

Spousal support is decided on a case-by-case basis.  The amount and length of time one may pay or collect spousal support depends on the length of the marriage, as well as the specific and unique circumstances of the marriage, and the standard of living established during the marriage.  A couple may decide to enter a spousal support agreement on their own or when that is not possible, the court will determine if spousal support is warranted and to what extent.  Spousal support is never guaranteed, and in some cases may be barred.  In any case, the advice of an experienced and knowledgeable family law attorney at Sparrow Miller, PLLC will be to your advantage.

Types of spousal support in Virginia

Temporary spousal support:

This type of support is also referred to as pendente lite which means during the litigation, or the time between filing and the final order of divorce.  Its purpose is to help the spouse requesting spousal support maintain his or her standard of living during the divorce process.  If the parties cannot agree to an amount, the court will require that each spouse prepare a monthly income and expenses statement.  The court then uses a formula established by Virginia law which looks at each parties’ gross monthly income and whether the parties have minor children, and such amount is presumed to be the correct amount unless special circumstances indicate otherwise.  Because the court does not look in-depth at the unique circumstances of the marriage, the amount of temporary support awarded typically has no bearing on the type or amount of spousal support granted or its duration in the final divorce decree.

Permanent spousal support:

Permanent support is what most of us think of when we think of alimony though it has become less and less common. Permanent spousal support is indefinite. The payments will continue until one spouse dies, the dependent spouse remarries or lives with a new partner.  This type of support is most often granted after a long marriage when the dependent spouse is unable to work due to age or health, or has little chance of finding gainful employment.   In some cases, permanent support can be modified if there has been a material change in circumstance, such as loss of employment, retirement, or illness and the circumstances warrant a reduction or cessation of spousal support.

Rehabilitative spousal support:

Rehabilitative support has some similarities to permanent support but differs in that it is for a finite period of time. Its purpose is to provide for a spouse until he or she is able to become self-sufficient and provide for themselves. It usually is paid during the time the receiving spouse needs to gain education and/or new skills and find employment.  The court looks at each dependent spouse’s unique situation. For example, an agreement may be made for the dependent spouse to receive support until the children enter college or for a period of months or years to allow for time to obtain education and find employment.

Lump sum spousal support:

Spousal support is usually paid out over a period of time in monthly installments. However, paying the agreed amount in a lump-sum may be an option in certain cases. It may be agreed upon as a settlement instead of dividing property or assets.  There are some benefits to taking a lump sum. The money you receive all at one time may have a greater value than the money you receive in future installments. It also gives you the opportunity to invest or receive interest immediately. You won’t have to worry about missed payments or enforcing court orders if your spouse refuses to pay at a later date. However, you should discuss potential tax implications with your attorney, accountant, and/or financial advisor.

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How is spousal support determined?

Unlike child support or pendente lite spousal support, the Commonwealth of Virginia does not have a statewide formula for determining either the amount or duration of spousal support.

The basic consideration for determining who pays, how much is paid, and the duration of support is based on the duration of the marriage, the earning capacity and financial resources of both parties, and balances one spouse’s financial need against the other’s ability to pay.

Factors affecting spousal support in Virginia

Courts consider a number of factors when considering a request for spousal support.
While not an exhaustive list, these are some of the most common factors:

  • Length of marriage
  • Income of both spouses including property and assets
  • Age and health (both physical and mental) of both spouses
  • Current standard of living
  • Current living expenses
  • Earning potential of each spouse
  • Stay at home parent
  • One spouse’s contribution to the other’s advanced degrees or career success
  • Each spouse’s support and contributions, both monetary and non-monetary, made to the well-being of the marriage
  • Provisions made with regard to the distribution of marital property
  • Each spouse’s financial assets including potential inheritance or other assets
  • Retirement benefits
  • Financial obligations of each spouse
  • Time needed for dependent spouse to seek employment or earn the qualifications needed to obtain gainful employment
  • Tax consequences to each party

How does Adultery affect spousal support?

Adultery by one spouse will usually bar that spouse from receiving spousal support, but occasionally it will not. 

For example, if one spouse proves the other committed adultery, but the other can show that the “innocent” spouse earns more money and that cruelty, desertion or some other major issue was the central cause of the deterioration of the marriage, then the court could still award the adulterous spouse alimony. 

That said, proving adultery is very difficult because even if the adulterous spouse admits the affair, there has to be other independent evidence of it such as photos of the affair or text or “sext” messages from the paramour. If you believe this may apply to your situation, you should consult an experienced Virginia family law attorney at Sparrow Miller.

A word about Spousal Support and the Tax Cuts and Jobs Act of 2017

Prior to 2019, spousal support payments were tax deductible by the payor and taxed as regular income by the recipient.

Now spousal support payments stemming from a court order or an agreement made in 2019 or later will no longer be deductible by the paying spouse and in turn, will not be included as income by the recipient spouse.  In other words, spousal support will now be treated, for tax purposes, like child support.

This shouldn’t affect anyone who is currently paying spousal support or wants to modify spousal support ordered or agreed to prior to 2019, but couples in spousal support negotiations now will need to take into account the impact of the new tax law.

Couple discussing a Virginia separation agreement with mediator

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