Spousal Support and Modification of Spousal Support

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Spousal support is simply payment from one spouse to a financially dependent spouse to help support that spouse during and after a divorce. In many cases spousal support is a monthly payment. Both the amount of the monthly payment and the overall duration of the payments are determined on a case by case basis.

A spousal support determination is made taking into account the needs of the recipient, the ability of the payor to pay, the standard of living attained during the marriage, and the length of the marriage. For the most part, there are no standard formulas for determining a final spousal support award. (Spousal support differs from child support in this way.) That being said, some counties in Virginia have developed guideline formulas to aid the court in determining temporary or pendente lite spousal support awards (spousal support which is designed to last until the court can make a final determination at trial). Further, all Juvenile and Domestic Relations District Courts use a standard formula for determining pendente lite support.

The duration of spousal support is a significant issue. Duration typically falls into one of two categories, spousal support for a “term of years” (also called “rehabilitative” spousal support) or “permanent” spousal support.

Spousal support for a term of years or defined duration is precisely what it sounds like. It is a series of monthly payments with an ‘end date’ at some point in the future.

“Permanent” spousal support is somewhat of a misnomer. It would be more accurate to call it “open ended.” In other words, permanent spousal support does not have a set end date. Rather it simply continues until: 1) the death of either party; 2) the remarriage of the recipient; 3) the recipient’s cohabitation in a relationship analogous to marriage for a year or more; or 4) a material change of circumstances that is sufficient to warrant modification of the spousal support payments. The duration of the marriage is often a key consideration in the decision to award permanent support versus support for a defined duration.

Spousal support can be a difficult subject to litigate and negotiate. This is because, unlike child support, there are no formulas that set forth what spousal support should be. (Note that in many circumstances,  there are formulas for temporary support – but there are never any formulas that dictate what the ‘final’ spousal support award should be. Rather, for the most part, the law simply says that the court has broad discretion to award a spousal support amount that it feels is appropriate based on the: needs of the recipient; ability of the paying spouse to pay spousal support; the standard of living attained during the marriage; and the length of marriage. Virginia Code Section 20-107.1 sets forth the detailed factors that the Court should consider in setting spousal support.

Because there are no hard and fast rules for calculating spousal support , as there is with child support,  it can be difficult to talk about what clients can expect when it comes to the amount and duration of a potential spousal support award (Although often the temporary guidelines may serve as a starting point for discussion, even though those guidelines are not used outside of temporary support hearings). Realizing this, it is almost always advisable to work with an attorney if spousal support is an issue in your case.