Alimony, also known as spousal support or maintenance, is a financial provision designed to help a dependent spouse maintain a reasonable standard of living after divorce. However, it’s not a guaranteed right in Virginia, and several factors can disqualify you from receiving it.
As a family law firm dedicated to changing the way people think about legal representation, Holcomb Law, PC understands the complexities and emotional challenges surrounding alimony in Virginia. We’re here to provide you with helpful information about what might disqualify you from receiving alimony in the Old Dominion State.
The Basics of Alimony Eligibility in Virginia
Before we dive into disqualifying factors, let’s quickly review the basics. Virginia courts take into account a number of considerations while deciding on alimony, such as:
- The duration of the marriage
- Each spouse’s financial resources and needs
- Each spouse’s earning capacity and employability
- The standard of living established during the marriage
- Each spouse’s contributions to the family’s well-being.
The court’s decision will take into account the combination of these factors, which means the judge has to carefully weigh every couple’s circumstances on a case-by-case basis. Now, let’s explore the circumstances that might disqualify you from receiving alimony in Virginia.
Disqualifying Factors for Alimony in Virginia
Adultery and Other Grounds for Fault-Based Divorce
One of the most significant disqualifying factors for alimony in Virginia is adultery. If you’ve been unfaithful during your marriage, you may lose your right to receive spousal support. Other fault-based grounds for divorce, such as cruelty or desertion, can also impact alimony decisions. However, adultery stands out as a particularly strong disqualifying factor.
Financial Self-Sufficiency
If you’re financially self-sufficient, you may be disqualified from receiving alimony. Virginia courts aim to help dependent spouses become self-supporting within a reasonable time.
Consider Tom and Lisa’s hypothetical situation: They’ve been married for eight years. Lisa is a successful software engineer earning a six-figure salary, while Tom works part-time as a yoga instructor. Despite the income disparity, Lisa’s financial independence would likely disqualify her from receiving alimony if they were to divorce.
Short Duration of Marriage
While Virginia law does not require a minimum length of marriage to get alimony, the duration of your marriage plays a role in how a judge might make alimony determinations. Generally, short-term marriages are less likely to result in alimony awards.
For example, if Alex and Maria were married for only two years before divorcing, the court might determine that the short duration of their marriage doesn’t warrant an alimony award.
Cohabitation or Remarriage
In Virginia, cohabitation with a romantic partner in a relationship analogous to marriage can disqualify you from continuing to receive alimony. Similarly, remarriage automatically terminates alimony payments.
Imagine this scenario: After her divorce, Jennifer receives alimony from her ex-husband, Mark. A year later, she moves in with her new boyfriend, sharing expenses and presenting themselves as a couple. Mark could petition the court to terminate alimony based on Jennifer’s cohabitation.
Voluntary Unemployment or Underemployment
If you’re voluntarily unemployed or underemployed, the court may impute (attribute) income to you based on your earning capacity. This imputed income could disqualify you from receiving alimony or reduce the amount you might otherwise receive.
To illustrate, imagine David and Emma’s case: David, a former executive, quits his high-paying job to pursue his passion for painting shortly before the divorce. The court might view this as voluntary unemployment and impute income to David based on his previous earnings, potentially disqualifying him from alimony.
Equal or Higher Income
If you earn as much as or more than your spouse, you’re unlikely to qualify for alimony. The purpose of alimony is to address financial imbalances, not to provide additional income to a spouse who’s already financially stable.
Consider Rachel and Mike: Both are successful attorneys with similar incomes. In their divorce, neither would likely qualify for alimony due to their equal earning capacities.
Prenuptial or Postnuptial Agreements
If you’ve signed a prenuptial or postnuptial agreement that waives your right to alimony, you may be disqualified from receiving it. These agreements, if properly executed, are generally enforceable in Virginia.
For instance, before their wedding, Chris and Olivia signed a prenup stating that neither would seek alimony in the event of a divorce. Years later, when they decide to part ways, this agreement could disqualify both from receiving spousal support.
Dissipation of Marital Assets
If you’ve wastefully dissipated marital assets, the court may consider this behavior when making alimony determinations. Excessive gambling, extramarital affairs, or frivolous spending of marital funds could potentially disqualify you from receiving alimony.
Picture this: During their marriage, Paul develops a gambling addiction and loses a significant portion of their savings. When he and his wife Laura divorce, the court might view Paul’s dissipation of marital assets unfavorably, potentially disqualifying him from receiving alimony.
The Importance of Legal Representation
Navigating the complexities of alimony in Virginia can be challenging. That’s where Holcomb Law comes in. We’re committed to providing you with the guidance and support you need to understand your rights and options.
Remember, every case is unique. While these factors can disqualify you from alimony, the court considers the totality of circumstances when making decisions. That’s why it’s crucial to have experienced legal representation to advocate for your interests.
How Holcomb Law Can Help
At Holcomb Law, we understand that family law matters are more than just legal issues – they’re deeply personal and can have long-lasting impacts on your life. Our approach is simple: You matter here. We don’t just treat you like another case file. We find strategies and negotiate well to obtain the most favorable outcomes in your situation, all while consistently communicating with you to ease your stress.
We offer:
- A “No-Hassle Legal Strategy Meeting” where we answer ALL your questions
- Constant communication to keep you informed about your case
- A team of experienced attorneys, including retired military personnel who understand the unique challenges of military divorces
- A track record of success, recognized by independent review sites and legal organizations such as Martindale-Hubbell and The Daily Press.
You don’t have to face divorce alone. Let us help you understand your rights and fight for your best interests.
Frequently Asked Questions About Alimony in Virginia
Can I receive alimony if I committed adultery?
Adultery can significantly impact your ability to receive alimony in Virginia. According to Virginia Code section 20-107.1, if a spouse seeking support is found to have committed adultery, the court is generally barred from awarding that spouse any form of support, including alimony.
However, there is an exception to this rule. If the court determines, based on clear and convincing evidence, that denying spousal support would constitute a “manifest injustice,” it may still award alimony despite the adultery. “Manifest injustice” in common language means a very unfair situation. In other words, if the denial of alimony would be truly unfair to the requesting spouse, the judge may still grant them alimony even if they committed adultery.
Note that the burden of proof for adultery is high in Virginia. The accusing spouse must provide clear and convincing evidence of the adultery, which is a higher standard than the “preponderance of evidence” used in most civil cases. This might include photographic evidence, testimony from witnesses, or electronic communications proving the affair.
Even if adultery is proven, the court will consider all circumstances of the case when determining whether denying support would constitute a manifest injustice. The judge may take into account factors such as the duration of the marriage, the financial resources of each spouse, and the impact on any children.
How long do I need to be married to qualify for alimony in Virginia?
Virginia law doesn’t specify a minimum marriage duration for alimony eligibility. However, the length of the marriage is often a factor that courts consider when determining whether to award alimony and for how long.
Generally, the longer the marriage, the more likely it is that alimony will be awarded, especially if there’s a significant disparity in the spouses’ incomes. Short-term marriages (typically those lasting less than five years) are less likely to result in alimony awards unless there are exceptional circumstances.
For example:
- In a marriage of one to two years, alimony might only be awarded in cases of extreme financial disparity or if one spouse gave up significant career opportunities for the marriage.
- In a marriage of 5 to 10 years, the court might award alimony for a limited period to help the dependent spouse become self-sufficient.
- In marriages lasting 20 years or more, long-term or even permanent alimony is more likely, especially if one spouse has been out of the workforce for a significant period.
Remember, each case is unique, and the court will consider all relevant factors, not just the length of the marriage.
Can alimony be modified or terminated in Virginia?
Yes, alimony can be modified or terminated in Virginia under certain circumstances. According to Virginia Code section 20-109, either party can petition the court for a modification or termination of spousal support if there has been a material change in circumstances since the original order was issued.
Some examples of material change in circumstances are:
- Significant increase or decrease in either party’s income
- Job loss or career change
- Retirement
- Serious illness or disability
- Cohabitation of the recipient spouse with a romantic partner.
Note that for alimony to be modifiable, the original order must not have expressly prohibited modification. Some alimony agreements include provisions making them “non-modifiable,” in which case they generally cannot be changed except under extreme circumstances.
Termination of alimony can occur automatically in certain situations:
- Death of either party
- Remarriage of the recipient spouse
- Cohabitation of the recipient spouse in a relationship analogous to marriage for one year or more.
In the case of cohabitation, the burden of proof is on the paying spouse to demonstrate that the recipient is cohabiting in a relationship analogous to marriage. This typically involves showing evidence of shared finances, shared living arrangements, and a romantic relationship.
It’s crucial to note that even if circumstances change, alimony doesn’t automatically modify or terminate. The party seeking the change must petition the court and prove that the change in circumstances warrants a modification or termination of the alimony order.
How is the amount of alimony calculated in Virginia?
Unlike child support, Virginia doesn’t have a set formula for calculating the alimony award. Instead, the judge considers several factors outlined in Virginia Code § 20-107.1 to determine both the amount and duration of spousal support. These factors are:
- The obligations, needs, and financial resources of each party
- The standard of living established during the marriage
- The duration of the marriage
- The age, physical and mental condition of each party
- Any special circumstances that might affect the ability of a party to earn income or maintain financial independence
- Each party’s contributions to the well-being of the family
- The property interests of the parties
- The earning capacity and present employment opportunities for each party
- The opportunity for and ability of a party to acquire skills necessary to enhance their earning ability
- The choices the partners made during their marriage about their jobs, careers, finances, education, and parenting styles
- The extent to which either party has contributed to the attainment of education, training, career position, or profession of the other party
- Such other factors as the court deems necessary to consider the equities between the parties.
While Virginia law doesn’t provide a strict formula for calculating alimony, some judges and attorneys use informal guidelines as a starting point. Here’s one commonly referenced approach to compute alimony in Virginia:
For couples without minor children:
30% of the payor’s gross income minus 50% of the payee’s gross income.
For couples with minor children in common:
28% of the payor’s gross income minus 58% of the payee’s gross income.
Remember that these formulas are not legally binding and serve only as a general reference. Courts in Virginia have significant discretion when determining alimony awards, taking into account the factors we enumerated above.
For example, in a long-term marriage where one spouse has been out of the workforce for many years to care for children, the court might award a higher percentage of the working spouse’s income as alimony. Conversely, in a shorter marriage where both spouses have similar earning capacities, the court might award little or no alimony.
It’s also worth noting that courts often consider the combined award of alimony and child support (if applicable). Judges want to ensure that the combined amount doesn’t exceed 50 to 60% of the payor’s income, as this could be unfair or impractical.
Can I receive alimony if I’m in a same-sex marriage in Virginia?
Yes, alimony may apply to same-sex marriages in Virginia. State law treats all marriages equally, including same-sex and heterosexual couples, following the 2015 US Supreme Court decision legalizing same-sex marriage nationwide. When considering alimony for a same-sex marriage, Virginia courts apply the same set of guidelines, examining various factors such as the financial needs and resources of each spouse.
However, for same-sex couples, some unique considerations may arise, particularly if the couple was in a committed relationship for many years before legal marriage became possible. Courts may take into account the entire length of the couple’s committed relationship, not just the legal marriage, when making alimony determinations.
Once the court sees that alimony should be awarded, it will then decide on the amount and duration of the payments. This decision is based on the specific circumstances of the case, including the recipient’s financial needs and the paying spouse’s ability to provide support.
It’s important for same-sex couples to work with attorneys who are experienced in handling these unique aspects of same-sex divorce and alimony cases. At Holcomb Law, we’re committed to ensuring that all our clients, regardless of sexual orientation, receive fair and equal treatment under the law.
Remember, every case is unique, and the specifics of your situation will greatly influence any alimony determination. That’s why it’s crucial to consult with an experienced family law attorney who can provide personalized advice based on your specific circumstances.
Get The Help You Need When It Comes to Alimony Issues. Holcomb Law Can Help.
Understanding what disqualifies you from alimony in Virginia is crucial when navigating a divorce. From adultery to financial self-sufficiency, various factors can impact your eligibility for spousal support. Our experienced attorneys at Holcomb Law are ready to help you understand your rights and options, and fight for what you’re entitled to.
Don’t let uncertainty about alimony add to the stress of your divorce. Contact Holcomb Law today at (757) 656-1000 to schedule your “No-Hassle Legal Strategy Meeting” with our top-rated alimony lawyers.
