Virginia alimony laws dictate that an award (officially known as spousal support) is only granted when the court decides it is necessary. Typically, when spouses are in a long-term marriage when one is a stay-at-home provider, there is a wide income disparity, or where a spouse has a disability or doesn’t have a job.
Contrary to popular belief, there is no right or entitlement to spousal support in Virginia. Courts determine whether a spouse receives alimony on a case-by-case basis.
Here’s what else you should know.
- What are the Types of Alimony in Virginia?
- Is There a Formula for Spousal Support in Virginia?
- What are the Factors that Determine Spousal Support?
- How Long Does Alimony last in Virginia?
- How Do I Modify Spousal Support?
- Alimony and Taxes
- Virginia Alimony FAQs
What are the Types of Alimony in Virginia?
Temporary Spousal Support/Pendente Lite Support
Virginia Code provides that in any case where spousal support is in dispute, a court can enter an order of temporary support (also known as pendente lite support) until the case concludes. In a temporary spousal support award, the judge ensures the recipient spouse can make ends meet while waiting for the final judgment.
This applies in between divorcing spouses, annulment, and separate maintenance cases in circuit court, as well as spousal support proceedings brought in juvenile and domestic relations district court.
When a “pendente lite” order ends, the court can order more or less support or no support at all, depending upon the facts of the case.
There are guidelines for determining the “presumptive” amount of pendente lite spousal support. The guidelines only apply to cases where the parties’ combined monthly gross income does not exceed $10,000. In a spousal support case like this, the court must look to the factors found in Virginia Code § 20-107.1 to determine any pendente lite spousal support amount.
Under these guidelines, where child and spousal support is payable between the parties, the spousal support is calculated first. The parties’ incomes are adjusted by the spousal support, and the resulting incomes are used to calculate any pendente lite child support following the child support guidelines.
The formula used is (a) 30% of the gross income of the payor less 50% of the gross income of the payee in cases with no minor children and (b) 28% of the gross income of the payor less 58% of the gross income of the payee in cases where the parties have minor children in common.
Periodic Payments for an Undefined Duration
This alimony is a sum that a spouse or an ex-spouse pays at designated intervals, usually monthly. It is often referred to as open-ended spousal support or permanent spousal support.
The total of this award is uncertain because the payments do not end on a specific date. They end on the occurrence of an event, such as the death of either spouse, remarriage of the spouse receiving support, or possibly if the recipient spouse cohabits in a marriage-like relationship for a year or more.
This type of alimony is awarded in long-term marriages or when a financially dependent spouse has a limited ability to enter or re-enter the workforce.
Periodic Payments for a Defined Duration
This is also referred to as rehabilitative spousal support. It is periodic but has a specific end date. For example, rehabilitative alimony could be awarded for four years, payable monthly. However, it could also end early if the recipient spouse remarries, lives with a person in a relationship equivalent to a marriage for more than one year, or if either spouse dies.
Rehabilitative spousal support is awarded to help the payee spouse become self-supporting through additional education or training.
Lump Sum
A lump sum award of spousal support is a set amount due when a court awards it. There is some flexibility if the judge approves it, resulting in installment payments. The constant is that the overall amount is predetermined and must be paid according to the award.
A court can issue an award based on one of these types of support, or it may blend types to create an award in a combination of these.
In some alimony cases, couples prefer to resolve alimony issues independently, leading to the potential for mediation. This does give the parties more control to determine what they think is equitable. A judge will still need to review and approve the award to ensure it’s fair and equitable.
Read More: Who Gets the House in a Divorce?
Is There a Formula for Spousal Support in Virginia?
No “one size fits all” formula is used for calculating alimony in Virginia. Factors and circumstances are reviewed on a case-by-case basis by a Virginia family court judge with a lot of discretion in deciding on spousal support awards.
What are the Factors that Determine Spousal Support?
When deciding on an alimony award, the court must consider factors and circumstances that contributed to the dissolution of the marriage. After it’s determined that some type of award is appropriate, the court looks to a list of factors to determine the amount, duration, 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 particular 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 settlement agreement was reached
- 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 tax consequences, to ensure the award is equitable.
Payments are often made monthly but could be made in a lump sum or a combination of both.
As part of the award process, one spouse can ask the court to reserve that the other spouse’s right to receive support in the future should be limited. If the court approves the request, the reservation lasts only as long as half the time of the marriage (using a marriage end date on the date of separation). For example, a spouse can request support ends six years if the marriage lasted for 12 years.
How Long Does Alimony last in Virginia?
It depends on what a judge thinks is appropriate, but under Virginia Code § 20-107.1, the same factors that govern the court in determining an amount of spousal support also govern it in determining the duration of spousal support.
Parties in an alimony action should provide specific reasoning to the court for the amount of spousal support and any set duration of support. Reasons often used are the time it takes a party seeking support to complete school or even the amount of time before minor children are school age.
The burden for defining duration rests with the party who seeks to limit spousal support to a specified term, connecting the length you request to the factors found in the Virginia Code.
While there are no hard and fast rules, a “rule of thumb” is that a spousal support award is often issued for 50% of the length of the parties’ marriage. The length is usually interpreted as the date of marriage to the date of separation.
In marriages of over 20 years, discussions are important because the outcome can lead to long-term awards or even awards of permanent alimony that could last a spouse’s lifetime.
How Do I Modify Spousal Support?
If your circumstances change after a judge has issued a support order, you have the right to seek a modification of your spousal support. The recipient or spouse paying support can ask the court to increase, decrease, or seek termination of spousal support.
However, a spousal support obligation is not modifiable in Virginia if:
- It is according to an agreement (as opposed to ordered by a judge) that was entered into before July 1, 2018, and the agreement does not state that spousal support is modifiable; or
- It is under an agreement entered into after July 1, 2018, and the agreement specifically states that spousal support is not modifiable.
Spousal support cases that do not fall into either of those two categories are modifiable.
There must be clear and convincing evidence of a material change in circumstances since the date of the court order establishing the initial obligation before a modification of support payments is considered.
Not all such changes or special circumstances justify a modification of support. Courts want to establish if modification is possible most often due to an involuntary event, such as a change in health, long-term job loss, or other negative impacts on financial resources.
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 involves 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 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 cohabitates or remarries. The recipient spouse must inform the paying spouse of the remarriage.
Read More: Divorce Litigation: When is it necessary, and how does it work?
Alimony and Taxes
Due to recent changes in Federal laws, the payer cannot deduct alimony or separate maintenance payments under a divorce or separation order executed after 2018. These payments are also not included as income for recipients.
The same is true of alimony paid under a divorce or separation order executed before 2019 and modified after 2018 if the modification expressly states that the alimony isn’t deductible to the payor or included in the recipient’s income.
Taxpayers who pay support under a divorce agreement executed before 2019 can deduct those payments before they pay taxes when the following criteria are met:
- The recipient must be a spouse or former spouse
- There must be a written divorce or separation instrument
- Alimony must be paid with cash payments (such as checks and money orders)
- Alimony does not continue after the recipient dies
- The parties must live apart, residing in different households
- The parties must file separate tax returns (they cannot file a joint return and claim the alimony deduction)
- The court-ordered payment of alimony cannot state that payments are not deductible
Virginia Alimony FAQs
How are alimony payments enforced?
When a spouse falls behind on payments, either inadvertently or deliberately, the other party has options to pursue with the court’s help.
The most common of these is that Virginia law allows for an income deduction order to be entered by the court, ordering the spouse’s employer to deduct the appropriate monthly amount due from the employee’s paycheck.
Failure to pay alimony is disobeying a court order, and this is known as “contempt of court.”
Other actions a court can take include levies upon real and personal property, garnishment of property, and garnishment of bank accounts and other financial assets.
While it’s unlikely that a party will be imprisoned for failure to pay alimony because alimony is not considered a debt within the meaning of the Virginia constitution, which protects debtors from imprisonment.
Is alimony gender neutral?
Yes, alimony can be awarded to a man or a woman in Virginia. Courts make no distinctions on spousal support awards based on gender.
How does adultery affect alimony payments?
A court must consider all of the reasons why the marriage failed when deciding whether to award support. If one spouse committed adultery, cruelty, or criminal activity (among other acts enumerated by alimony laws), the innocent spouse might be free from any support obligation.
So, it’s possible that if your spouse cheats on you, you might end up paying alimony.
Awarding spousal support may be barred by proving adultery on the part of the person seeking spousal support. However, due to recent changes in Virginia law, you can’t block spousal support due to desertion or cruelty.
Also, alimony can be denied if it “would constitute a manifest injustice, based on the parties’ respective degrees of fault during the marriage and the relative economic circumstances of the parties.” This opens the possibility that a spouse who committed adultery might receive spousal support despite proof of infidelity.
Read More: 23 Signs of a Toxic Marriage and What To Do About It
Is custodial status considered when determining alimony in Virginia?
The judge in the state of Virginia does not consider custodial status when determining alimony payments. That means that alimony calculations are not affected by whether or not the receiving spouse has custody of the children or the costs involved.
