Spousal support, often known more commonly as alimony, is used not to punish one spouse, but to support a financially dependent spouse in the event of a pending divorce and/or after a divorce. Spousal support can be established either by an agreement between the divorcing parties or upon award by the Court. In Virginia, there is no “right” to spousal support, but the Court may award support, upon petition, in accordance with factors provided for in the Code of Virginia to include the following: the duration of the marriage; the standard of living during the marriage; the obligations, needs, and financial resources of each spouse; the physical and mental condition of each spouse; each spouse’s earning capacity; the extent to which one spouse contributed to the other’s attainment of an educational or career position; and, anything else the court determines is appropriate.
In addition to the previous factors, the Court will also consider whether the spouse to receive support has committed any of the grounds for a fault-based divorce, i.e., adultery, abandonment, cruelty etc. If the spouse is found by the Court to be at fault, often support will not be awarded unless there would be a manifest injustice to the offending spouse if support was withheld. It should be noted, however, that if that spouse is awarded support in a fault-based scenario, it will never be for a permanent duration.
What types of spousal support are available?
If the Court determines that spousal support is warranted, there are three types of support that can be awarded: payments for a defined period, payments for an undefined period, or a lump sum payment. The Court may also award a combination of any of the three if it feels necessary. If the Court does not award spousal support, it is important to ask the Court to reserve the right to receive spousal support in the future or that privilege will be lost upon the entry of the divorce decree. Typically, the Court will state how long the reservation for spousal support can be requested, but if that period is not defined in the Order, there is a presumptive reservation period that will not allow an award for spousal support after a period equal to half the duration of the marriage. Once the reservation duration is set, the court may not later modify that time frame therefore, it is important to ensure your Attorney addresses this issue, if appropriate for your case.
How can I enforce my spousal support order?
If your spousal support was ordered as part of a child support Order, you can file an application at the Division of Child Support Enforcement in order for them to enforce the payment of both your child and spousal support orders. If your spousal support is not attached to a child support order, once payment is delinquent, a Motion for Show Cause can be filed in the Court that awarded the spousal support. At that time, the Court may be petitioned to put into place such mechanisms for enforcement as garnishment of the paying spouse’s wages to ensure prompt payments in the future.
Can support be modified or terminated?
Well, that depends on how and what type of support was awarded. If support was awarded by consent of the parties, a contract exists and the court will likely not interfere with what the contract states. Thus, it is important before you agree and sign anything you seek representation so that you are aware of any possible ramifications of what you are about to sign. If, however, the Court awards support based upon the petition of one spouse, then support will end at the time the Court designates depending on what type of support it awards (see above). If support is permanent, it will terminate either upon the death of either party or upon the remarriage of the receiving party.
When the Court awards spousal support, it will always retain the ability to modify the Order based upon a material change in circumstances of either the paying or receiving spouse during the duration of the spousal support Order. Examples of material changes in circumstances might be that one party’s income decreases to a level which does not allow them to continue paying the previously ordered amount or even if the receiving spouse is cohabitating with another person in a marriage-like relationship for over a year.
For more information, contact us at Holcomb Law at 757-659-1233 or at attorneyholcomb.com.