It’s totally natural to have fears about money when you’re going through a divorce.
How will you maintain your lifestyle once you separate households? Will you be able to afford to stay in the house?
The harsh reality is that alimony can have a major impact on your financial situation. That’s why it’s one of the most highly contested issues in divorce.
In this guide, we’ll cover:
- Who is entitled to alimony in West Virginia
- The types of spousal support available
- The factors a judge considers when determining alimony
- Modifying or terminating spousal support
- Enforcing alimony orders
- The tax impact
- And more West Virginia Alimony FAQs
Who is Entitled to Alimony in West Virginia?
When one spouse cannot reasonably support themselves during or after a divorce, alimony (also referred to as spousal support) can be awarded by West Virginia family courts.
The person requesting support must demonstrate need, and the other party must have the ability to pay. Courts can require a supporting spouse to pay in periodic or lump sum payments. Typically, spousal support payments are made from a spouse’s income. When income isn’t enough to cover the support award, the court may require a spouse to transfer the title of separate property.
Either spouse may ask for alimony, but the spouses must be living separately before a court will order alimony payments.
Types of Support in West Virginia
The following types of alimony may be awarded in West Virginia.
Temporary Alimony can be ordered while a divorce is still in progress and is also referred to as alimony pendente lite. A spouse who is a lower-wage earner or who has stayed at home to care for children will probably need financial help to pay for gas, groceries, clothing, and supplies before the divorce is finalized.
Another form of temporary spousal support takes place after the divorce and is limited time until a spouse’s situation changes, such as remarriage or children grow up and leave home.
Permanent Alimony is payments that last as long as it takes for the recipient spouse to become self-reliant. Often, a spouse may never become self-reliant due to age, illness or a disability. In those cases, payments could last for the entire lifetime of the recipient.
Rehabilitative Alimony refers to payments that help the receiving spouse become gainfully employed again. Rehabilitative support is used for living expenses and training or education that contribute to a reasonable goal ending in self-support. It is usually only paid for a specific limited amount of time and ends when the recipient spouse receives a degree or becomes gainfully employed.
Support in Gross refers to awards that are set amounts paid for specific amounts of time. For instance, the court could order $50,000 of lump sum support to be paid monthly for 5 years.
These payments can be periodic but may also be paid in a single lump sum.
What Factors Are Used to Determine Alimony?
Spousal Support is available only in divorce or “separate maintenance” cases. If you were not married, you could not collect alimony no matter how long you lived together or how many children you may have had.
If you want spousal support, you must ask for it in the papers you file with the court.
If you are the person filing the divorce, you can include a request for Spousal Support in your divorce petition. You can request spousal support in your answer when your spouse files a divorce against you.
Support is available only if the spouses live “separate and apart from each other.” You can’t get alimony if you are still living with your spouse.
There is no mathematical formula for calculating alimony in West Virginia. Instead, there are several factors a court will use when determining whether alimony will be awarded.
According to the West Virginia Code, the court considers:
- Duration of the marriage
- The period during which the spouses actually cohabitated
- Income of the spouses
- Income-earning abilities of each of the parties, based upon such factors as educational background, training, employment skills, work experience, length of absence from the job market, and custodial responsibilities for children
- The division of marital property awarded by agreement or by the court
- Ages and the health condition of each party
- Educational qualifications of each party
- Postponement of education by one spouse to further the earning capacity of the other
- Standard of living established while married
- The likelihood that the party seeking spousal support, child support or separate maintenance can substantially increase their income-earning abilities within a reasonable time by acquiring additional education or training
- Financial or other contribution made by either party to the education, training, vocational skills, career, or earning capacity of the other party
- The anticipated expense of obtaining education and training
- Educational costs of any children
- Health care costs for the children
- Tax ramifications to each party
- The extent to which it would be inappropriate for a party, because that party will be the custodian of a minor child or children, to seek employment outside the home
- Financial needs of each party
- Legal obligations of each party to support himself or herself and to support any other person
- Costs and care associated with a minor or adult child’s physical or mental disabilities
- Other factors the court deems necessary or appropriate to arrive at a fair and equitable grant of spousal support, child support, or separate maintenance.
Read More: Divorce Laws in West Virginia
Modifying or Terminating Spousal Support in West Virginia
West Virginia alimony laws allow either spouse can ask the courts to decrease, increase, extend, or end alimony payments at any time.
The requesting spouse must prove a significant change in circumstances that warrant a modification. This might include a job loss, ongoing health issues, remarriage, or other major changes.
If a recipient spouse remarries, temporary and permanent support payments cease. But rehabilitative alimony is ongoing, even if the recipient spouse gets remarried during the first four years of the rehabilitative period.
If either spouse passes away, both permanent and temporary alimony top. However, rehabilitative alimony only stops if the recipient spouse dies. But if the payor spouse dies, rehabilitative support and support in gross continue unless these payments would be unfair to his or her estate.
Judges have considerable leeway when deciding both an original support award and any modifications. However, the court’s ability to modify a support order may be limited based on the terms of the initial order.
Spousal support is sometimes waived by both parties in a divorce process. If this happens, neither side can come back later and ask for alimony. It does not matter how much the circumstances have changed or how unexpected they were.
Enforcing West Virginia Alimony Awards
Spouses who do not pay alimony when it is due create a debt known as alimony arrears. West Virginia courts can take action when a support order is not followed and may hold a hearing to determine why or impose enforcement actions on the non-paying spouse.
In cases where an income withholding order is not already in place, the court may enter into a wage garnishment arrangement with the spouse’s employer. Money from each paycheck is automatically withheld, paid to the state, and then disbursed to the receiving spouse.
Small claims court actions are also possible. In some cases, the judge may file a contempt of court order charge for defying the court-ordered alimony schedule. If this happens, the judge may impose fines, assign court costs, and in rare cases put the non-paying spouse in jail.
Per the West Virginia code, other possible actions include liens against bank accounts and real property and other similar actions.
Some spouses may pursue alimony mediation. A neutral third party may step in and help spouses reach a mutual alimony agreement. Sometimes, the mediator helps couples decide issues related to other parts of the divorce, such as child custody, property division, and other similar matters. Couples may prefer this option since it gives them more control than going in front of a judge who may or may not decide matters in a way they agree.
Spousal Support and Taxes
Due to recent changes in Federal laws, the payer cannot deduct support payments or separate maintenance payments under a divorce or separation instrument executed after 2018. These payments are also not included as taxable income for recipients.
The same is true of alimony paid under a divorce or separation instrument executed before 2019 and modified after 2018 if the modification expressly states that the alimony isn’t deductible to the payor spouse or included in the income of the recipient spouse.
The paying spouse under a divorce agreement executed before 2019 can deduct those payments from 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 made with cash payments (such as checks and money orders)
- Maintenance 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
West Virginia Alimony FAQs
Does adultery or other fault-based reasons impact alimony?
An extramarital affair will work against the unfaithful spouse, but it does not definitively bar them from receiving spousal support. If the marriage was dissolved as the result of cruelty, crime, or adultery, the court must take this misconduct into consideration when deciding whether to award alimony. An extramarital affair will work against the unfaithful spouse, but it does not definitively bar them from receiving spousal support. And if both spouses were unfaithful during the marriage, the court will compare this conduct when they determine the award.
What impact does a prenuptial agreement have on alimony?
If spouses agree that no alimony will be paid and put that in writing as part of a prenuptial agreement, a West Virginia court will honor that agreement.
Is child custodial status considered when determining alimony?
West Virginia family court judges consider custodial status when determining alimony payments. This means that alimony calculations are affected by whether or not the receiving spouse has custody of the children, and custodial spouses may receive higher alimony payments. It’s essential to remember that judges have broad discretion and must consider all factors on a case-by-case basis when deciding how a divorce is finalized, so alimony impacted by custodial status is not always guaranteed.