Spousal support, also known as alimony, is one of the trickiest issues in Virginia law. There is no clear cut rule as to the award of spousal support. Instead, Virginia law requires the courts to consider several factors when determining spousal support, which is under Virginia Code Section 20-107.1. As there are several factors to be considered, it can be unclear as to how much weight is given to each factor, especially as the judges who decide how spousal support is awarded can do so based upon their own discretion. In this blog, we will outline six factors that seem to influence how spousal support is awarded in Virginia.
Factors Affecting Spousal Support in Virginia
- Any Needs or Obligations of the Spouses: This factor takes into consideration the ability to pay support by the payor, and the need for the support by the party receiving it. In doing so, the courts will consider the financial resources of both parties, which may include income from the parties’ pensions, profit sharing, and retirement plans.
- Duration of the Marriage: The length of the marriage is another influential aspect of the final decision. This factor is especially important when determining the length of the spousal support obligation. Additionally, this factor considers the standard of living during the marriage. This would include what kind of lifestyle the parties have while being married.
- Age and Mental/Physical Condition of Each Party: How old and how healthy are the spouses? The parties’ ages and mental and physical conditions are heavily weighted when determining the award of spousal support. For example, if the parties are getting divorced later in life, then the payor’s ability to pay could be affected due to an impending retirement. On the other hand, the younger the parties are, the more likely they will have room for growth in their careers and have a higher earning capacity, which is a factor that is further explained below. This could affect the amount and length of the support award.
- Earning Capacity: The parties’ education, skills and training are relevant to considering their earning capacity. Relevant and potential employment at the time of the separation is also considered. Additionally, if the parties have young children that are not yet in school, then this may affect the primary caregiver’s ability to obtain employment at their full capacity. Furthermore, if one of the parties was a stay-at-home parent during most of the marriage, then their earning capacity would be lower than the other party who remained in the workforce.
- Disposition of Assets: Whether it has already been arranged through a prenuptial agreement or whether it will be litigated and decided by a judge, how the marital assets will be divided between the spouses is another critical consideration when determining spousal support. This relates to the first factor discussed in the ability to pay or the need to receive support. A related section of the Virginia Code specifies provisions for how the marital assets will be divided.
- Other Relevant Factors: There are several other relevant factors that can be used to determine spousal support. These factors include what the tax consequences are for both parties and what circumstances led to the dissolution of the marriage. For example, under Virginia Law, a party who has committed adultery will not be awarded spousal support unless the court finds that denial of support would result in manifest injustice, which means that it is obviously unfair.
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