By: Audrey Henderson

Formally known as “alimony,” when one spouse needs more financial support than the other, the spouse in need may petition the court for spousal support after the divorce complaint has been filed.  The traditional example is a stay-at-home mom who takes care of the kids while the dad leaves the home for a 9 to 5 office job.  Because mom’s job did not produce a financial income that she could rely upon after that marriage ended, courts allow mom (or the spouse in need of financial assistance) to file for spousal support.

When determining the amount of spousal support, the court evaluates all relevant evidence, which leads to a very fact specific inquiry.  Va. Code Ann. § 20-107.1(E).  In other words, every case will be different and the court will look at thirteen factors, but each factor may not be applicable in every case.

Virginia Code § 20-107.1 lists thirteen factors that Virginia courts evaluate to determine spousal support.

1.     The obligation, needs and financial resources of the parties, including income from all pensions, profit sharing, or retirement places.  The Virginia State Bar states that the courts place much significance on the payor’s ability to pay the support and do not overweigh the payee’s need for the spousal support.

2.     The standard of living established during the marriage, and not the standard of living a spouse lives after the married dissolved.  See Furr v. Furr, 13 Va. App. 479 (Va. Ct. App. 1992) (the court increased the spousal support award for the wife, holding that the wife experienced a marked reduction in her standard of living due to a dramatic rise in living expenses after the divorce, but not necessarily due to the divorce itself).

3.     How long the marriage lasted.  The Virginia State Bar has stated that “[a] financially dependent spouse of a long-term marriage is more likely to receive an award of spousal support than one who has been in a short marriage.”  See also Keyser v. Keyser, 7 Va. App. 405 (Va. Ct. App. 1988) (finding that four years of marriage is considered a relatively short marriage and that having a relatively short marriage alone does not bar a spouse from rights and interests in the marital assets); Robinson v. Robinson, 45 Va. App. 682 (Va. Ct. App. 2005) (husband only paid spousal support for seventeen months because marriage lasted relatively short duration); Baer v. Baer, No. 2278-94-1, 1996 Va. App. LEXIS 73 (Va. Ct. App. Feb. 6, 1996) (holding that the short duration of a marriage is considered when applied with other spousal support factors, but cannot be the only factor to consider).

4.     The age and physical and mental condition of the parties and any special circumstances of the family.  See Cooper v. Cooper, 4 Va. Cir. 154 (Va. Cir. Ct. 1984). (the court took into consideration that the wife had multiple sclerosis, was disabled, and received Social Security disability benefits and was unable to participate in gainful employment when ruling in favor of spousal support to the wife).

5.     The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home.  See Block v. Block, 2005 Va. App. LEXIS 82 (Va. Ct. App. Mar. 1, 2005) (“[t]he court particularly referenced the income and earning capacities of the parties . . . the special needs of the one child; and the decisions regarding employment” for the spousal support award).

6.     The contributions, monetary and nonmonetary, of each party to the well-being of the family.  See Holmes v. Holmes, 7 Va. App. 472 (Va. Ct. App. 1988) (the court noted that while the husband provided almost all the monetary contributions, the wife provided a significant amount of nonmonetary contributions including the duties of homemaker, mother, and military officer’s wife).

7.     The property interests of the parties, both real and personal, tangible and intangible.  See Martin v. Martin, 2009 Va. App. LEXIS 80 (Va. Ct. App. Feb. 24, 2009) (holding that the trial court properly considered both real and personal property, tangible and intangible when ruling that it was not going to put the wife in a position of trying to sell the marital home for the purpose of having a lower mortgage payment).

8.     The provisions made with regard to the marital property under § 20-107.3

9.     The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity.  See Srinivasan v. Srinivasan, 10 Va. App. 728 (Va. Ct. App. 1990) (the court took note that the wife was capable of earning a certain amount per year, yet held that she was entitled to a reasonable time to secure employment, and thus was awarded spousal support).

10.  The opportunity, ability, and/or the time and costs involved for a spouse to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability.  See Holmes v. Holmes, 7 Va. App. 472 (Va. Ct. App. 1988) (the court awarded the wife spousal support by considering the wife’s limited opportunity to seek training and employment at the age of sixty-four).

11.  The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time.  See Hubbard v. Hubbard, 2008 Va. App. LEXIS 504 (Va. Ct. App. Nov. 18, 2008) (the court took into consideration that both the husband and wife agreed that wife would leave workforce to take care of four children while he worked).

12.  The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party.  See Hicks v. Hicks, 2012 Va. Cir. LEXIS 80 (Va. Cir. Ct. June 13, 2012) (the court took into consideration that the husband financially supported the wife’s college education during the marriage and thus reduced the amount of spousal support given to her).

13.  Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

In setting the spousal support amount, a court “a court must look to current circumstances and what the circumstances will be ‘within the immediate or reasonably foreseeable future,’ not to what may happen in the future.” Srinivasan v. Srinivasan, 10 Va. App. 728, 735 (Va. Ct. App. 1990) (quoting Young v. Young, 3 Va. App. 80, 81-82 (Va. App. Ct. 1986)).

These factors help to determine the nature, amount, and duration of the spousal support.  The court can order that the spousal support needs to be paid in periodic payments for a defined duration, in periodic payments for an undefined duration of time, in one lump sum, or a combination of any of these.  Va. Code. Ann. § 20-107.1(C).

Stay tuned for my next blog post about how to change or modify the spousal support award due to a material change in circumstances.