How much a person is going to receive or have to pay in spousal support, also called “alimony” or “support and maintenance,” is a very important question for all persons going through a divorce. The answer affects so many things in your life, from where you will be able to afford to live after the divorce to your tax liability. Unfortunately, there is no easy answer. Child support in Virginia relies, at least as a starting off point, on a very specific guideline for calculation. There is no such guideline, outside of the pendent lite phase (explained below), however, for determining the amount or duration of spousal support.
A. Guidelines for Determining Support
You may or may not have heard as such formulas for spousal support such as the Fairfax Guideline (list others). These guidelines are very important, depending on where your case is located, for determining temporary support. Temporary support will commonly be awarded for the period while the case is pending and before the final hearing. These formulas are not used by the Courts, however, for determining support after the parties are divorced. The Courts have made it very clear that the trial courts must consider the factors set out by the legislature and cannot simply rely on a formula to calculate support. See Coleman v. Coleman, 2011 WL 5838703 (Va. Ct. App. 2011).
B. Factors for Determining Support.
The Court has the power to award a lump sum support payment, period support payments (such as monthly), or both. The factors for determining spousal support are set out in Virginia Code Ann. § 20-107.1 and they are:
1. 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;
2. The standard of living established during the marriage;
3. The duration of the marriage;
4. The age and physical and mental condition of the parties and any special circumstances of the family;
5. 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;
6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
7. The property interests of the parties, both real and personal, tangible and intangible;
8. The provisions made with regard to the marital property under § 20-107.3;
9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
10. 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;
11. 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;
12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
The Court considers these factors in determining whether to award support, how much support to award, and how long to award support. Each case is different and in one case a few of the factors may be more important other factors.
C. Duration of Support
The duration of support is also going to depend on the factors stated above. In negotiating, lawyers will often use short hands as a basis for coming to a settlement, such as half the length of the marriage. There is, however, no strict rule on determining the duration of support. The Court can and may award permanent support, and the Courts have in the past awarded permanent support in a marriage that only lasted 8 years. Knowledge of how the specific judges tend to rule in your geographic location is big asset at the bargaining table.
Spousal support is not an easy issue to litigate. Awards are very fact specific and require careful analysis. Simply put, there is no easy shortcut to determine what a person should expect to receive or pay spousal support or how long he or she should expect to receive it or pay it.