- Determining whether to award spousal support
- Determining the amount of spousal support
- Taking a closer look at a few of the spousal support factors
- A brief history of spousal support in Virginia divorce law
- What is the purpose of spousal support?
- Modern theories of spousal support
One of the hottest topics in Virginia divorce law.
“Spousal support”, also referred to by many as “alimony” is probably one of the most frequently litigated issues in a divorce. Predicting a court’s spousal support determination is one of the toughest challenges a divorce lawyer may face in a contested case. This is both good and bad.
It is bad because inconsistency in courts’ spousal support determinations make cost/benefit analysis tricky when negotiating settlements. Ironically, the variance in spousal support decisions is also good because it provides a source of leverage in negotiations and gives savvy divorce attorneys the opportunity to creatively employ different theories for each particular set of circumstances.
There is a lot of misinformation and misunderstanding surrounding spousal support in Virginia (and elsewhere for that matter). It may be said that the purpose of spousal support is malleable and dependent on the facts of each individual case. Suffice it to say that spousal support is one of the most interesting and dynamic issues in modern divorce litigation in Virginia.
Spousal Support Determinations in a Virginia Divorce
Spousal support is basically determined in a two stage process. First, a court decides whether an award of support is appropriate. Second, the court determines the amount of support that should be awarded.
A Circuit Court starts the spousal support inquiry by first determining whether or not an award of support is appropriate. When determining whether or not to award spousal support the court must consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce such as desertion or cruelty. Generally, adultery acts as a bar to the guilty spouse’s right to receive spousal support. The exception to this rule is when it is shown that a denial of spousal support would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties. There has been some very interesting recent case law interpreting this exception. Divorce attorneys can’t stop talking about it to bored family members and neighbors.
If the court decides that an award of spousal support would be appropriate then the next step is to determine the amount and duration of the spousal support award.
A court may award spousal support in several forms. These include periodic payments for a defined duration, (i.e. $5000 per month for 10 years); periodic payments for an undefined duration ($5000 per month until modified or terminated by a future court order), or a lump sum award ($100,000.00 payable within 6 months), or in any combination thereof.
When determining the duration and the amount of support the court is required to consider a specific set of factors. It is important to note, however, that the court is not required to give any particular weight to those factors and thus has essentially unbridled discretion when weighing the factors so long as all factors are considered.
The factors that must be considered are as follows:
- The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
- The standard of living established during the marriage;
- The duration of the marriage;
- The age and physical and mental condition of the parties and any special circumstances of the family;
- 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;
- The contributions, monetary and nonmonetary, of each party to the well-being of the family;
- The property interests of the parties, both real and personal, tangible and intangible;
- The provisions made with regard to the marital property under § 20-107.3;
- The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
- The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
- 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 one or both of the parties have been absent from the job market;
- The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
- Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
One must always remember that there are 13 factors for a court to consider when determining a spousal support award. Under the statute, no one factor is given any precedence over another. The emphasis on any particular factor depends on the specific facts of the case and the objective sought. As stated by the Virginia Court of Appeals when asked to review a trial court’s spousal support decision with regard to a particular factor:
“[I]t is only one of thirteen such factors enumerated…for the court’s consideration, some economic and some non-economic, with number thirteen being an open-ended directive that “the court shall consider … [s]uch other factors … as are necessary to consider the equities between the parties.” Robinson v. Robinson, 675 S.E.2d 873, 54 Va. App. 87 (Va. App., 2009).
Spousal Support Factor #1: Obligations, Needs and Financial Resources
The first spousal support factor the court is required to consider is:
“The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature.” Spousal support and “Obligations”.
What are “obligations”?
“Obligations” refers to evidence of each spouse’s financial liabilities such as mortgage debts, rent payments, credit card bills, medical bills etc. In other words, what each spouse must pay each month (a month is the standard measure, although not binding, of a spousal support payment period). The standard method for preparing evidence related to this factor is to collect each spouse’s monthly bills as well as any evidence indicating liabilities that will come due in the foreseeable future or that are likely to arise in the near future.
What are “needs”?
“Needs” asks the court to sort obligations, in its discretion, to distinguish “needs” from “wants”. This is a highly contested classification process in many cases. One spouse may consider a $500 monthly hair cut a need while it may be argued that this is a “want” with lower cost alternatives available. One of the most common issues here is the “need” for a new car.
What are “financial resources”?
Consideration of “financial resources” requires collecting data on all sources of income to each spouse so those numbers may be compared to the “obligations” and “needs” of each party. It is important to note that “financial resources includes income from all source including retirement benefits. This is an extremely important consideration for both parties.
A spouse wishing only to pay a time-limited spousal support award may want to focus on retirement benefits awarded to the other spouse in equitable distribution. An award of retirement benefits payable in the future will provide a future income stream for the spouse receiving spousal support and thus reduce or eliminate his or her need for additional support from the paying spouse so that support payments should terminate when those benefits become payable. For this reason, division of retirement assets can be a crucial aspect of equitable distribution.
Another important category of “financial resources” may include inheritance. A significant inheritance may reduce a spouse’s need for financial support. Similarly, investments may be considered an extremely valuable financial resource that may provide financial security as well as in income stream in the case of dividend payments. One other common resource is a home with substantial equity. Such a home may be sold to realize cash to meet needs and also serve as way to down-size to reduce monthly obligations when the need for a larger home diminishes over time, such as when children move out.
Spousal Support Factor #1: Summary
In summary, the first spousal support factor asks the court to collect information on what each party may owe either as debts or living expenses, to classify those obligations (needs versus wants), and then to consider the income and financial resources available to both parties to meet those needs and wants.
Spousal Support Factor #2: Standard of living during the marriage
How is “the standard of living during the marriage” measured?
Measuring “the standard of living during the marriage” is essentially a continuation of the inquiries made under the first factor (parties’ obligations, needs, and financial resources). What this second factor adds is basically a directive to consider the marital “lifestyle” enjoyed prior to the parties’ separation. This invites the court to delve into evidence reaching beyond the monthly receipts and financial statements introduced under the first factor.
Items of interest may include patterns of buying groceries or types of entertainment. Did the parties shop at the local thrift bakery or the artisan breadmaker? Dusty french bottles or wine-in-a-box? Vacations in the Mediterranean, the KOA, or none at all? Bentleys or a Gremlins? Mansion or a molehill? Club memberships? I think you get my drift.
As you can imagine, there is an enormous amount of flexibility in how we use the term “standard of living established during the marriage”. Divorce attorneys do everything they can to take advantage of this broad concept. The only limit is creativity. However, there are some mainstays when it comes to arguing this factor.
It is not unusual for one side to argue that the other is living, post-separation, beyond the standard of living established during the marriage. The sub-text to the argument is that he or she is trying to inflate evidence of lifestyle to secure a more favorable spousal support ruling. If such scheming is proven then the “high-living” spouse may lose credibility or have his or her evidence disregarded by the court.
Another common argument is for a party to argue that the “standard of living” during the marriage exceeded the parties’ financial means. This supports a conclusion that the “standard of living” is unsustainable post-divorce for either spouse. If the court accepts this argument then it may give little weight to the “standard of living” factor. Because financial difficulties often accompany divorce, this is tactic is frequently employed by a spouse who wishes to avoid an excessive spousal support award.
The truth of the matter, though, is that “the standard of living established during the marriage” is rarely maintained for either party.
Is “the standard of living established during the marriage” preserved for either spouse?
In many cases it is not possible for the parties to continue to enjoy the same lifestyle after their separation or divorce. In other words, “the standard of living established during the marriage” is simply an unattainable goal for either party. The primary reason for this is that their combined income supported a single household prior to separation but after separation is must, at least for some period, support two households. Over time the parties may be able to re-attain the same standard of living but there is almost always a dip in “lifestyle” for both spouses subsequent to the separation and after the divorce.
The courts are more likely to enforce maintenance of the standard of living for a spouse that is innocent of any wrongdoing when the other spouse committed marital fault such as adultery.
This is a common argument to hear from divorce lawyers representing innocent parties in a divorce involving adultery or desertion. However, as previously mentioned, this is only one of many factors that the courts must consider when fashioning spousal support awards. It has also been stated in numerous appellate court opinions that:
“[O]ne who seeks spousal support is obligated to earn as much as he or she reasonably can to reduce the amount of the support need.” Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990).
So how does a court consider “the standard of living established during the marriage” in a Virginia divorce?
As indicated in the quotation from Robinson supra, there are no real rules governing how a judge must weigh any particular factor. Many people mistakenly believe that the spouse receiving spousal support must be maintained according to the standard of living established during the marriage. This is not an accurate statement of the law.
Considerations such as the relative fault of the parties, their marital roles, and a host of other factors may ultimately sway the court or have no effect whatsoever. In the end, spousal support determinations are a balancing act that depend heavily on the predilections of the judge and a divorce lawyer’s aptitude for persuasive argument. Yet, it may be stated with confidence that this factor is always given careful consideration in spousal support litigation because, unlike some of the other factors, there is always relevant evidence regarding it.
Summary regarding spousal support and the standard of living established during the marriage.
Spousal support remains one of the most litigated and complex issues in a Virginia divorce. Interplay between the 13 spousal support factors results in a plethora of viable argument strategies. However, “the standard of living established during the marriage” is often a key factor in spousal support determinations because it is interrelated with practically every other factor. The importance of well-thought out evidence and compelling arguments with regard to this factor cannot be understated.
Spousal Support Factor #3: Duration of the Marriage
What is meant by the “duration of the marriage”?
The duration of the marriage is measured as the time between the date of the wedding and the date of separation. However, in some cases a long co-habitation period may pre-date the marriage.
Thus in cases where the parties lived together as an unmarried couple for a substantial period of time prior to the marriage, it is not unusual to hear arguments incorporating that period as part of the justification for a request for substantially more spousal support.
How does the “duration of the marriage” affect spousal support decision-making?
Most courts weigh the duration of the marriage for at least two reasons. First, the duration of the marriage is used by some judges to gauge an appropriate time period during which spousal support should be paid. It seems to make sense that a 2 year marriage would rarely justify 20 years of spousal support payments. Likewise, a 50 year marriage often warrants more than one year of spousal support for a dependent spouse.
Many divorce clients come to me with the mistaken belief that spousal support may only be awarded for a time that equals one-half the length of the marriage. This mistaken belief usually arises from a misreading of Virginia Code 20-107.1(D), which states that there shall be a rebuttable presumption that the reservation of a right to receive support will continue for a period equal to 50% of the length of the marriage.
The second application of the “duration of the marriage” to spousal support decision-making is to serve as an indicator of a dependent spouse’s entitlement to spousal support. In a long term marriage it is likely that the dependent spouse has passed on employment opportunities and sacrificed future earning capacity in order to support the primary earner in the family. This can occur when the decision is made to leave the job market to raise children or to maintain marital property and affairs while the other spouse builds his or her career and long-term earning potential.
In a short-term marriage it is less likely that a dependent spouse has sacrificed as much of his or her career opportunities and earning potential. Therefore, it is less likely that he or she should require long-term spousal support or have earned a significant equitable interest in the earnings of his or her spouse.
When is the “duration of the marriage” most likely to affect a spousal support decision?
The most common arguments emphasize either the “long marriage” or “short marriage” as support for spouses’ requests for periodic spousal support with undefined duration (= no set end date; usually sought by dependent spouse in a long-term marriage) or for lump-sum or periodic spousal support of a defined duration (= set end date; usually sought by paying spouse in a short to mid-length marriage).
Despite its seeming simplicity, and its limited application by many lawyers, the “duration of the marriage” may serve as the basis for a variety of theoretical arguments concerning the nature and purpose of spousal support. Crafty divorce lawyers will apply different theories depending on the facts of the case and their client’s objectives. The legal advocate’s creativity is the only limitation on this factor’s usefulness for persuading a divorce court.
“Spousal Support” (which was called “Alimony” at the time) was first established by English ecclesiastical courts to provide support to wives incident to divorce. Under ecclesiastical law, marriages were indissoluble. Separations (referred to as divorce a mensa et thoro (divorce from bed board)) were available but the husband’s duty to support the wife was an ongoing obligation of the marriage.
What we commonly think of as a divorce today is technically known as an “absolute divorce” (divorce a vincula matrimonii). This complete divorce did not emerge as an option to wedded couples until the mid-1800s. Absolute divorce is a complete legal termination of the marriage. All duties owed between spouses are terminated except as otherwise ordered by the court. Initially, absolute divorce was only granted in the case of adultery. Then, as now, adultery worked as an absolute bar to a spouse’s right to receive spousal support except in the rarest cases.
Over time, absolute divorce evolved into its modern form and now it is the most common type of divorce granted. Despite this progression, court’s for a long time retained the notion of a husband’s duty to support the wife except in cases of adultery. One reason often used to explain this was established gender roles in society that were hard to shake off (and arguably still a part of modern culture).
As societal attitudes toward absolute divorce softened, alimony analysis became an inquiry into the husband’s ability to pay support balanced against the wife’s need for support. Still the purpose of alimony remained link to obligations arising as the result of the marriage and the husband’s duty to support the wife despite the fact that an “absolute divorce” had occurred.
Fortunately, times have changed and outdated, gender prejudices are fading. But one does not have to reach too far back into the case law to find remnants of the antiquated world view that saw husbands as obligated to support wives for life and wives as incapable of taking care of themselves without such support. As written, the current laws regarding spousal support are gender-neutral. However, it can be argued that the paradigm shift remains incomplete.
The United States Supreme Court affirmed gender neutrality within the marriage in Orr v. Orr (1979) wherein the Court held that a statutory scheme in Alabama that imposed alimony obligations on husbands but not on wives was an unconstitutional equal protection violation:
“gender based classifications cannot be justified on the basis of “archaic and overbroad generalizations, old notions, and role typing which lead to the conclusion that the wife is dependent and the husband has the primary duty of supporting the family.”
There have been other significant advances in the law to match modern notions of marriage and marital roles. However, for some reason, the key component that is missing in modern spousal support law (in Virginia) is a clear statement of the purpose for which spousal support is to serve. This is not to say that Virginia law has failed to evolve to meet changing societal norms in the marital relationship. The problem is that our laws are still too wide open for interpretation on the subject. As a result, spousal support is hotly-contested in many divorce cases.
A look at the interplay between the development of spousal support case law and statutes passed by Virginia’s General Assembly illustrates the trajectory (and slow pace) of these developments.
In 1975 the Virginia General Assembly codified accumulated case law in Virginia Code 20-107 wherein six factors were listed for the court to consider when formulating a spousal support award. (it is worthy of note that “alimony” as a term was abolished and replaced by the gender neutral “spousal support and maintenance”). This first attempt at codifying spousal support law reflected the accumulation of common law cases directed toward the analysis of each spouse’s need and ability to pay. The presumption of a wife’s entitlement to alimony was conspicuously absent. The burden was now on each spouse to prove the need, or lack thereof, for spousal support.
In 1977, two more factors were added. The first required the court to consider the “contributions, monetary and non-monetary, of each party to the well-being of the family,” and the second required the court to consider “the property interests of the parties, both real and personal, tangible and intangible”. These new factors required courts to consider contributions by each spouse that could not be directly measured in dollars. Other commentators have noted how attention was being drawn to the value of homemaking as a legitimate contribution to the marriage.
The 1977 amendments also made additional payment options available to the court to use in its order for a spousal support award by adding the “lump sum” option. The “lump sum” option provided a device for compensating a spouse for contributions to the marriage. It provided an alternative to prior modes of analysis that only considered post-divorce need. Still, there was no expression of the exact purpose spousal support in intended to serve.
The last and latest substantive amendments to the spousal support section of the Code occurred in 1998. The current version, recodified at Virginia Code 20-107.1 now contains 13 factors for the courts to consider, including a catchall, and a right of reservation of support by the court that may last up to one-half the length of the marriage. Trial courts are also now required to provide written explanations for their support awards. There is still no clear declaration of purpose. In fact, the variety of factors available to the trial court almost ensure inconsistency in the purpose for which spousal support is awarded.
There is no certain answer to this question yet as the law continues to evolve. A review of the case law subsequent to all these amendments reveals that courts continue to lack consensus as to the purpose spousal support is intended to serve or exactly how these factors should be weighed and applied. For a divorce attorney this creates a fertile area for creative and often financially significant arguments.
The lack of a clearly expressed purpose in our spousal support statutes results in a lack of predictability and consistency in spousal support orders issued by the court.
Virginia’s appellate courts have done very little to move spousal support jurisprudence forward. The only evident consistency is the tendency to cite the “abuse of discretion” standard applied in spousal support appeals followed by affirmation of the trial courts’ rulings.
So here we are in the evolution of spousal support laws. What do we do? An experienced divorce lawyer looks to the theories of spousal support that are currently in vogue, or at least favored by local judges, and then applies them to create a case theory that is consistent with the client’s objectives. A detailed look at the theories and statutory factors gives some indication of how this may be accomplished.
A number of theories of spousal support are discussed in legal theory literature. Many are frequently relied upon by attorneys who do not even recognize the theory they are employing in a particular case. Sometimes this leads to contradictory positions in other arguments they use during a divorce proceeding. The most interesting theories are those that sound good but when examined closely lead to unjust or preposterous results. The most common ones involve spousal support premised upon a contract theory of marriage. If you are interested in learning more about these theories please email me and I would be happy to share any part of my huge collection of journal articles and other resources on those topics. Here are links to a few of the better resources, many of which I rely on in developing this page: The Theory of Alimony (California Law Review), Current trends in alimony law (American Bar Association), Problems with division of property and alimony in the USA.
In brief, some of the more popular theories included spousal support premised upon theories of: reliance interests, restitution interests, post-divorce need, unjust enrichment, partnership laws, detrimental reliance, rehabilitative alimony, etc. Elements of each of these theories may be used in crafting arguments and evidence for a particular spousal support case.
Amongst legal scholars the national consensus on spousal support appears to be that its purpose is to prevent unfairness by forcing ex-spouses to share all of the economic gains and losses produced by the marriage but realized after the divorce. This approach arguably fills the gap left by our current equitable distribution statute by addressing the economic consequences of the marriage that have nothing to do with the marriage and that appear long after the final decree of divorce is entered. The best “theory” (in my humble opinion) under this perspective is the “unjust enrichment” approach to spousal support.
The theory of “unjust enrichment” as applied to spousal support analysis brings with it a large body of case law from which courts may draw from in support of their reasoning and decisions. It severs modern spousal support completely from its historical attachment to the husband’s obligation to support his wife after a divorce. It also eliminates consideration of post-divorce need, which I think is a vestige of archaic gender-based thinking and the cause of much inequity in modern spousal support decisions.
It is apparent how important a role the case law plays when there are so many factors for a court to consider. The way these factors are presented and argued at trial can have a tremendous impact on the final spousal support amount, if any. A successful case requires careful planning and strategy performed by an experienced divorce litigator.
If spousal support is contested in your divorce, it is highly advisable that you seek legal representation by an experienced divorce and spousal support attorney.