TV and movies often refer to alimony, or ongoing payments to a former spouse, as a part of divorce. We call these payments spousal support, and it is important to understand how these payments work in real-world divorces.
To begin, not all divorces result in spousal support. The court relies on a number of factors to determine if there should be support and, if so, how much. The court considers the parties’ earning capacities, the length of the marriage, the standard of living during the marriage, and the contributions of each party to the family.
No attorney can accurately predict a judge’s permanent spousal determination – the cases are highly unpredictable and fact-dependent, but a good rule of thumb is that marriages over 10 years with large discrepancies in income result in longer-term to permanent payments, while marriages between 5 and 10 are harder to predict with shorter support terms, and that support for marriages from 1 to 5 years is less again, and sometimes non-existent.
Read on to learn more about spousal support in Virginia from our Roanoke-based team of divorce attorneys at Slovensky Law.
Pendente Lite Support
Pendente Lite is Latin for “pending litigation.”
Pendente lite support, if ordered by the court, will begin following a pendente lite hearing, which is a hearing that happens towards the beginning of your case. The purpose of this hearing is to make decisions about how the parties should act until the divorce is finalized. So, the court can order support that lasts from the pendente lite hearing until the final divorce is granted.
In cases dealing with spousal support, the court takes into consideration a number of factors. The court can consider a statutory formula based on current income OR the needs of the recipient and the ability of the payor to pay.
If you are the likely recipient of support, you need to put together a budget that reflects the standard of living you had during the marriage. You need to carefully include all expenses, dividing expenses incurred once a year by 12.
Be over-inclusive and add a small emergency fund. The judge WILL cut this budget. It should exceed the suggested pendente lite support formula:
- Cases With Minor Children: 26% x Payor’s Income – 58% x Payee’s Income.
- Cases With No Minor Children: 27% x Payor’s Income – 50% x Payee’s Income.
If you need a new vehicle, include the cost of a reasonable vehicle in your budget. If you need an apartment, include the cost of a reasonable apartment and utilities in your budget.
DO NOT include expenses for the children.
If you are the likely payor of support, you want to include every expense, including debt expenses that you have. The judge will see contributions to savings as places you can cut back. Money not accounted for will be seen as available to spend on your spouse, but frivolous expenses will cut against your credibility. Also, keep in mind that you cannot criticize the other party’s necessary expenses, groceries in particular, to the extent that you are also claiming those expenses.
In either case, it’s helpful to have an experienced spousal support attorney on your side.
Final Support in Virginia
In its final decree, the court makes its ultimate decision on spousal support.
If support is ordered, the court can order a lump sum payment, periodic payments for an indefinite period, or periodic payments for a set amount of time. There are no set rules, but, in general, shorter marriages (i.e., three years or less) are very unlikely to result in permanent support.
The longer the marriage, the more likely support will be granted. And at twenty-plus years, with an income discrepancy of 40% or more, permanent support is almost certain. Again, though, there is never any guarantee what the court will order.
If support is ordered, it may be ordered for “rehabilitative” purposes or for permanent support. In the rehabilitative instance, the court decides that a spouse needs certain level of financial support to “get back on their feet.” Perhaps the spouse has stayed home as a parent and needs time to find a job.
For permanent support, the court determines that a spouse needs ongoing financial support for the remainder of their life. The court can reach this conclusion for a few different reasons. In some cases, the spouses grew accustomed to a certain standard of living that cannot be maintained in divorce. In other cases, a spouse may simply be unable to earn enough to support themselves.
No matter the case, the court expects that everyone who is able to work will work. Of course, not all parties are capable of earning the same amount of income (say the difference between a spouse with a high school degree and one with a PhD).
So what if the court orders a spouse to pay support to their lower-income spouse, but, later, the recipient spouse obtains a high-paying job? In that case, you may file to modify the support order and show the court the changes in circumstances. Permanent support awarded by a court can be modified in the future if a party’s income changes through no fault of their own or achievement of retirement age.
If the court needs help determining your or your spouse’s income potential, our team at Slovensky Law can use a vocational analyst, a specialist who creates an expert opinion on a person’s earning capacity.
Health Insurance Considerations
Another area of importance when it comes to spousal support in Virginia is health insurance.
Once you are no longer married, health insurance costs may increase, as employer-based coverage is not available to spouses after the divorce. Spouses may be eligible for insurance through the marketplace or through COBRA via their spouse.
These options are often much more expensive than temporary support.
Understanding these considerations is important to achieving a great support outcome. Our team is here to help the court make the best ruling for your circumstances. This is a lot of information to digest, and we will be here to walk you through the process.