Alimony, now often referred to as spousal support or maintenance and support, consists of periodic payments awarded to a financially dependent spouse when the couple ends their marriage.
Historically, alimony was seen as a continuation of a husband's obligation to support his wife but the law now states that alimony may be awarded to either husband or wife, depending on each one's ability to provide for his or her own needs and the ability of the other spouse to provide for them. In reality, it is rare that husbands receive alimony awards from their wives.
Deciding the amount of alimony to be awarded a spouse can be frustrating and complex since the legal rules are general standards that must be applied to the facts of each specific case.
Money often becomes one of the major weapons between spouses who are divorcing. Determining whether alimony will be awarded, how much, and for how long and then securing an agreement with your spouse can be one of the most problematic and uncertain areas in divorce.
Alimony (spousal support) in Virginia is on an indefinite basis. Indefinite alimony can be raised or lowered over time if there is a change of circumstances. Effective July 1, 1997, cohabitation with a member of the opposite sex is now a factor, which may justify termination of spousal support. You must get alimony at the time of divorce, or you are barred from ever getting alimony in the future. Unlike some other jurisdictions, such as Maryland where alimony is "rehabilitative" alimony only awards in Virginia are not limited to a temporary period while the spouse gets back on his or her feet. Under Virginia law, married people are financially responsible for each other--the husband has a duty to support his wife, and the wife has a duty to support her husband. Additionally they are both responsible for one another's debts. This duty lasts until the final Decree in Divorce is granted. It doesn't stop because the couple separates.
Just as with property division, you are free to make your own decisions and agreements on support or alimony as along as the decisions are the result of free and open negotiation and are fair to both parties.
If both parties have jobs and earn similar salaries, the couple may decide against any spousal support or alimony payments. When the parties agreement to amount of spousal support in an agreement and that agreement is filed with the court without objection prior to the entry of the final divorce decree, the court will not enter any decree or order which is at variance with the amount stipulated in the contract. In some cases, circumstances may be more complicated if one spouse is in a disadvantaged position regarding the ability to be self-supporting.
Has one spouse been raising children and keeping house while the other has been building a business or career?
Did one partner put the other through school?
Are there very young children?
Does one spouse need time to learn a skill in order to be self-supporting?
If a couple filing for divorce cannot agree on whether alimony is needed, they may ask the court to make the decision. The court will then determine whether alimony is necessary, the amount, the duration, and the manner of payment.
Alimony And Property Settlement
Under the law, the judge must consider evidence of the amount of income to be generated by any monetary award prior to awarding alimony. The criteria to be applied by the judge in alimony cases is set forth in the Virginia code. They include the following:
Length of the marriage.
Education and training.
Age and health.
Respective financial positions.
Need for support.
Ability to pay.
Contributions to the family during marriage.
Prospects of the parties.
Division of marital property.
Standard of living during the marriage.
Factors in Determining Alimony
1. The financial needs and resources of both parties, including:
all income and assets, including non-income producing property,
any marital property award;
the nature and amount of the financial obligations of each party;
the respective rights of the parties to receive retirement benefits; and
the comparative earning power and abilities of each party.
Do you own your own house or any other property?
What do you owe money on?
Has one of you stayed home with children while the other earned the salary?
Is only one of you working at a job where there are retirement benefits?
The court will divide up a pension plan and other benefit packages in order to protect a dependent spouse.
Before you got married, did you have property or did you have bank accounts, a trust funds, stocks, etc. that you still have?
These count as non-marital property although the court in any settlement will not divide them, they may be factored into your need for spousal maintenance.
Will your capacity to work outside of the home, your earning power, and your expenses be affected by the fact that you are the primary custodian of a minor child or a disabled child?
2. The ability of the party seeking alimony to be wholly or partially self-supporting.
Have you ever worked outside of the home?
What was your salary?
Could you support yourself (and partially support your children) on this income?
Is it more financially realistic for a spouse who is not able to earn a significant income to remain at home to care for several young children than to pay for day care for each child?
3. The time necessary for the party seeking alimony to acquire sufficient education or training to enable the spouse to find suitable employment.
4. The standard of living established during the marriage.
What would be a realistic change in your life-style in order to permit the establishment of two separate households?
5. The duration of the marriage.
The court will make the following interpretation:
The longer the marriage, the greater the interdependence of the spouses and the more firmly their life-style is established. Alimony will more likely awarded in longer-standing marriages.
6. The contributions, monetary and non-monetary, of each party to the well being of the family.
Did you put your spouse through school and enable that spouse to achieve the level of professional or technical training that has supported the family?
Did you run the family and raise the children to the exclusion of establishing an out-of-the -home skill or career?
Did your home-making enable your spouse to concentrate on building a career that leads to economic security?
7. The facts and circumstances that led to the estrangement of the parties and the ending of the marriage.
The ground for divorce is important. In Virginia a finding of adultery specifically bars "permanent alimony," except in cases where the evidence indicates that the denial of support would constitute a "manifest injustice." A decision regarding manifest injustice would have to take into account the respective degrees of fault during the marriage and the "relative economic circumstances of the parties."
8. The age and the physical and mental condition of each party.
An older or disabled party is more likely to be awarded support than a younger, able-bodied one.
Are there young children to be cared for?
Is there a reason not to consider working out of the home?
The court will not award support to a person who is capable of working regardless of their personal desire not to seek employment out of the home.
9. Any agreement between the parties.
Did you and your spouse agree on property division or support issues? Is there a separation agreement?
Even though the property settlement between parties is not the same issue as the granting of alimony, they are very interrelated. The court will consider all the resources the dependent party has, including non-marital money and property settlement when making a decision about alimony.
10. The ability of the party from whom alimony is sought to meet his or her own needs while meeting those of the party seeking support.
What are the real financial assets that you had as a couple?
What can be turned into cash?
What is the real income of the partner who is being asked to pay alimony?
What does the financial future of this person look like?
Will the income increase over the years or is it likely to decrease?
Do you have non-marital resources?
Do you expect to inherit money?
11. Any other factors that the court considers appropriate to arrive at a fair decision. The courts on a case-by-case basis, however, interpret the Virginia Code, and much of the current law of alimony is contained in the case law. Thus a full understanding of your alimony rights may require consultation with an attorney.
Seeking Legal Advice
It is essential that you consult with an attorney regarding spousal support if you fall into any of the following categories:
1. If you have considerable personal property.
2. If you are a woman and have not been employed outside of the home.
3. If you are not capable of supporting yourself at the present time.
Types Of Alimony In Virginia
Temporary alimony falls into two distinct categories: Alimony during litigation and permanent alimony and rehabilitative alimony.
Alimony during litigation (pendente lite) is granted by the court before the case is even heard to cover the living expenses of the dependent spouse. This amount may be awarded for a short period or until the divorce becomes final. An award temporary alimony does not mean that the party will be awarded permanent alimony.
Permanent alimony refers to support for an indefinite period of time, terminating with the death of either party or the remarriage of the dependant spouse.
Additionally there are the categories of payments that refer to whether or not following the court decree; it is possible to alter the amounts of alimony.
Technical alimony means that the amount of payments can be modified after the divorce if the agreement states that the payments are dependent upon certain conditions and the conditions warrant it. Either spouse can petition the court for an increase or decrease in payments.
The court regardless of a change in circumstances cannot modify fixed Alimony. It must be stated in the agreement between the divorcing spouses that the alimony is to be fixed or the court will understand it to be modifiable at a later date.
Alimony And The Separation Agreement
Many divorcing couples work out the thorny details of alimony and other property divisions as well as other issues such as child custody in a contract known as a separation agreement.
This agreement may be drawn before or after the parties file for divorce and even if they are still living together; it is simply spells out legal rights and obligations without taking any formal action in a court of law. Once agreed to, however, this document, however, is enforceable as a contract should its terms be breached by either party. A separation agreement may also be incorporated into a final divorce decree and then is enforceable as a court order. It is advisable to work with an attorney in crafting a separation agreement that does not waive any rights or the possibility of modification of terms.
If alimony is agreed to in the property settlement agreement and the agreement is incorporated into the final decree, then the court doesn't have the power to change it. But if the court sets the amount of alimony, it may maintain complete control as to whether it can be raised, lowered, or halted.
Regarding taxes, the party that pays alimony may deduct the payments from income taxes and the party that receives it, as income must pay taxes on it. Child support is not deductible but the party that pays it may take the child as a dependant on income taxes.
Enforcement Of Alimony Decree By The Court
Once the court orders that alimony is to be paid, failure to pay is disobeying a court order, otherwise known as "contempt of court." Remedies available to the person seeking alimony include: wage liens, levies upon real and personal property, garnishment of property, and garnishment of wages.
Source: VA Bar Association