If you or your spouse has initiated divorce proceedings, there are several topics that you’ll need to negotiate before finalizing your divorce.
Most people will think of splitting assets or figuring out child custody, but alimony is another important area that you should address.
Especially if you’ve been married for a long time, or if one spouse is unable to support themselves on their own, a Virginia court may require that one of you pay “spousal support” to the other.
“Spousal support” and “alimony” mean basically the same thing, despite having slightly different definitions when it comes to how the terms are used in different states.
The Virginia Code, for example, refers to such payments as spousal support, despite alimony being the more common term in popular culture.
For this reason, your attorney (and other resources) may choose to refer to these payments as spousal support.
Or, they might choose to use alimony as a way to simplify the issue a little bit.
There’s really no difference in the end, as the terms mean the same thing when you get away from the lawyer nitty-gritty of your case.
In this article, we’ll be using alimony.
However, if you’re looking for more information about how these payments work in Virginia, you should also try searching for “spousal support” to see if it turns up more information.
What is Alimony?
Alimony is a court-ordered amount of money that one spouse must pay to the other as part of a divorce settlement.
Usually, a judge will award alimony in cases where the couple has been married for so long that one spouse might have difficulty finding work or otherwise supporting themselves after the divorce.
Before you talk with your attorney about alimony, you’ll want to read Virginia Code § 20-107.1, which covers most of Virginia’s alimony laws.
This section includes all the different ways a spouse can pay alimony, as well as the most common reasons why the court would order it.
Why do I have to pay alimony?
There are a few reasons why a court would order a spouse to pay alimony after a divorce.
Generally, most of these reasons center on cases where one spouse has a considerably higher income or earning potential than the other.
In practice, alimony can be either a lump sum payment or a series of periodic payments that support the lifestyle of the lower-earning spouse while they re-enter the job market or adjust to their new living conditions.
For instance, consider the following:
A wife gave up her career to stay home and take care of the household and children. This sacrifice allowed her husband the freedom to further his career at the cost of her own.
He’s now making good money, but her earning potential remains a small fraction of what it could have been if she wasn’t a stay-at-home mom.
The husband files for divorce. What should the wife do? How will she support herself?
In this case, a judge would most likely order the husband to pay alimony.
This spousal support award would make up for the difference in earning potential for a set period of time while the wife gains the experience she needs to get a job.
Judges may also award alimony when a physical or mental disability prevents one spouse from working full time.
In this second scenario, the spousal support payments may be permanent, since there is no way for the disabled spouse to re-enter the workforce or otherwise support themselves on their own.
What factors affect alimony decisions?
In most cases, the judge has full discretion in how and why they award alimony. However, the Virginia Code specifically outlines thirteen different variables which they must take into consideration:
- The obligations, needs, and financial resources of each spouse, such as debts and income.
- The standard of living established during the marriage.
- The duration of the marriage.
- The age and physical condition of both spouses, as well as any related special circumstances in the family.
- The extent to which the previous variable affects a spouse’s ability to find work outside of the home.
- The contributions, of both money and time, of each spouse to the well-being of the family.
- The property interests of both spouses.
- The provisions made for dividing property as per § 20-107.3.
- The present earning capacity of both spouses, such as training, education, and present employment opportunities.
- The opportunity for, ability of, and the time and costs involved in seeking appropriate training, education, and employment opportunities needed to enhance earning ability.
- Any decisions regarding employment and employ-ability made during the marriage which affected present and future earning potential, including how long they’ve been absent from the job market.
- The extent to which one party contributed to the attainment of training, education, and employment opportunities for the other (such as if they worked full time to put the other through a graduate program).
- Any other factors such as tax consequences, grounds for divorce, or other necessary variables which need to be taken into account.
In cases where a spouse is contesting the alimony payments, the judge will consider all thirteen of these factors before making their final ruling.
Even in uncontested cases, a judge may take these factors into account before signing off on your divorce paperwork, as any and all alimony payments in the Commonwealth must be equitable (“fair”) in nature.
For these reasons, you’ll want to go over each and every one of these factors with your lawyer before you decide to petition for alimony.
How Do Virginia Courts Calculate Alimony?
As with most divorce proceedings, working out alimony is much easier if both parties decide to come to an agreement outside of court.
However, it’s common for judges to become involved in contested and at-fault divorces.
In such cases, the judge will award alimony at their own discretion.
When deciding on an amount, the judge will consider all thirteen of the factors we listed above in addition to previous alimony awards ordered in similar cases (i.e. “case law”).
However, there is also a shorthand rule many Virginia judges follow to approximate alimony decisions.
Virginia’s Shorthand Rule to Alimony
Before we dive into this shorthand rule, we want to be very clear that there is no set formula for calculating alimony in Virginia.
Instead, all Virginia judges will determine alimony awards on a case-by-case basis.
However, judges are people too, and they are aware of the biases and inconsistencies that sometimes appear in rulings across the different courts in Virginia.
For this reason, some Circuit Court judges will use a very simple shorthand formula to help approximate how much alimony to award.
This formula was originally developed by the Circuit Court of Fairfax, and many other Virginia courts have since adopted it.
While it’s normally only used in Northern Virginia, it still offers a useful baseline for what you can expect to pay in alimony.
To quickly summarize, this formula states that for a spouse to pay alimony, that spouse must have an income at least 50% higher than the other spouse.
This higher earner must then pay 30% of their income, minus half of the amount of the lower earner’s income, to the lower earner.
The Formula in Practice
To give an example of how this might play out, consider the following scenario.
A husband works as a doctor and makes $200,000 per year. His wife works a desk job making $50,000. They decide to get divorced.
However, since the husband makes 50% more than his wife, the judge orders him to pay alimony.
In this scenario, the judge’s alimony approximation would go as follows.
Since 30% of the husband’s salary would be $60,000, you would subtract half of the wife’s salary ($25,000) from this amount to get an approximated alimony payment of $35,000 per year or $2,917 per month.
The judge will then use this number as a “ballpark estimate” when determining the actual amount to award.
Again, Virginia court’s don’t mandate this formula, and it can be affected by any and all of the thirteen variables we listed above (especially if children are involved).
However, it provides a good approximation of how much alimony you should expect to pay after your divorce.
What are the Different Types of Alimony in Virginia?
We’ve discussed the why and the how much basics of alimony, but another important thing to take into consideration are the different types of alimony awards in Virginia.
Generally speaking, these different types differ by how you pay alimony (lump sum or monthly for example) as well as how long you must pay.
This is also where the term “spousal support” comes back into play, as many of these alimony types are meant to “support” the other spouse while they get back on their feet.
Pendente Lite Alimony
Pendente lite alimony is a form of temporary support that can help support a spouse while the parties are still in ligation for their divorce.
Judges will often award pendente lite alimony to spouses who have financial needs that might be put at risk by the divorce (such as food, medical, or housing costs).
After the parties finalize their divorce, the pendente lite support will stop and the final alimony award (if there is one) will kick in.
The goal of this type of alimony is to support the receiving spouse while they take classes or complete training to become self-sufficient.
For this reason, these payments are usually time-limited based on how long it might take to get the appropriate training needed to get a job.
During that time, the recipient spouse (usually) must take classes or another form of training in order to ease back into the working world.
When a judge orders alimony for an indefinite period of time, it’s usually called “permanent spousal support.”
A judge will normally award this when a spouse is unable to financially support themselves, even if they were to receive more education or training.
This could be due to the recipient’s age, a physical or mental disability, or the need to care for a disabled child.
In making this determination, the judge will have to consider the same factors used to determine the amount of alimony under Virginia Code § 20-107.1.
Note, however, that “permanent” does not necessarily mean forever.
It just means that the payments will continue while the present facts of the matter remain the same.
So, for example, if the supported spouse re-marries, this “change in circumstances” can act as a ground for the dismissal of the spousal support order.
Lump Sum Alimony Payments
Instead of getting periodic payments, a judge may find it appropriate to award the entire alimony amount in a single lump sum payment.
Generally, this happens when the judge can’t rely on the paying spouse to keep up with the periodic payments.
A couple may also decide to ask for a lump sum alimony payment so they can sever ties and not have to retain communication because of alimony payments.
Additional Factors to Consider
When a judge is deciding on how to award alimony, they’ll consider all of the circumstances of the divorce.
While you won’t be in a criminal courtroom, “anything you say or do can be used against you” also applies in this scenario.
Put another way, the other factors surrounding your divorce proceedings might affect the alimony award.
Alimony is NOT a Punishment
Divorces are often filled with lots of emotions and arguments.
However, you should NEVER file for alimony as a way of punishing your spouse.
First off, a judge will never award alimony to punish a spouse for the actions that led to the divorce.
The whole point of spousal support is to mitigate the effect the divorce has on the lower earner’s way of life, not to punish the higher-earning spouse.
Second, judges don’t enjoy having their time wasted.
It takes a lot of work to schedule court dockets, coordinate all the officials involved, and prepare for alimony proceedings, so filing a fruitless alimony case just to get back at your spouse will only end badly for you.
Alimony for the Spouse Who Committed Adultery
Another common scenario is for a spouse to file for divorce on the grounds of adultery.
However, what happens if the adulterous spouse qualifies for alimony?
Well, Virginia law generally doesn’t allow permanent spousal support for spouses who commit adultery.
If you remember the thirteen variables we mentioned earlier, this would fall under the final point as a disqualifying factor.
However, at the same time, the Virginia General Assembly has also passed an exception to this rule which applies to certain situations.
“The court may make such an award notwithstanding the existence of such ground [of adultery] if the court determines from clear and convincing evidence, that the denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.”Virginia Code § 20-107.1.B
Again, this decision largely depends on the discretion of the judge, so you’ll want to make sure you present a valid argument and extensive evidence supporting the argument for why or why not support should be given in this situation.
How to File for Alimony in Virginia
Alimony is simply a small part of your broader divorce case. For this reason, how you file for alimony will depend on the specifics of your situation.
Put another way, filing for alimony is a complex process that you should discuss with a lawyer.
For the purposes of education, however, there are two general ways to file for alimony in Virginia.
First, you could include alimony payments in your separation agreement.
This is essentially a contract which dictates the terms of your divorce, which is then signed off on by a judge.
Alternatively, if you and your spouse disagree on how much alimony should be paid, you might have to appear in front of a judge to settle the issue.
In this situation, you and your lawyer will schedule some time in your local family court to go over the case in front of a judge, who will then decide on alimony as described above.
Common Questions About Alimony in Virginia
Because alimony cases are often fact-specific, you may find it difficult for you to find answers to more specific questions.
Here are a few of the most common questions we receive about alimony, and some general answers to these questions.
However, if you have any questions outside of the ones listed below, we highly recommend that you speak with an attorney about the matter.
Can alimony affect my child support payments?
As the biggest difference, “spousal support” is supposed to support the spouse, while “child support” is supposed to support the child.
However, the amount you are paying (or receiving) in child support may affect how much spousal support you owe (or will receive from) your spouse.
Unlike child support, there is no set formula to determine spousal support in Virginia.
If a court is deciding both spousal and child support as part of the same case, it may modify the child support formula to take alimony into account.
If one spouse is already paying child support, a judge may choose to take this into account if they feel that the payments are relevant to the alimony portion of the case.
The one exception to this rule is in the case of military families.
In Virginia, there is a cap on how much combined child and spousal support a service member may pay.
The total sum of both child support and alimony cannot exceed 60% of a military member’s pay and allowances.
When can I stop paying alimony?
This depends entirely on how the order awarding support is worded.
If a judge orders that you pay alimony for an indefinite period of time (permanent support), there is no formal cut-off date for when you can stop paying alimony.
In order to stop paying you former spouse alimony, you need to file a petition with the court to terminate the payments.
There are two ways you can do so: automatic and discretionary.
For an automatic termination, you need to show that the circumstances have changed so drastically that spousal support is no longer needed.
Most commonly, death and remarriage would automatically terminate the alimony payments.
In the cases such as these, all you need to do is show the court proof that such an event occurred.
For a discretionary termination, you need to appear in front of a judge to show that the circumstances have changed enough to justify a decrease or termination in the alimony payments.
For example, if your spouse gets a much higher paying job, or if they begin to cohabitate with someone else (i.e. if they’re “in a serious new relationship”), you might be able to convince the judge to alter the alimony at their own discretion.
Can I modify the alimony order after the fact?
Under Virginia law, the spouse paying alimony can request a modification of the amount if their own circumstances significantly change.
For instance, if you lose your job or become disabled, you could use these changes in circumstance to convince the court to modify the original alimony order.
However, before you make any final decisions about modifying your alimony order, make sure to remember the thirteen points we mentioned above.
The change in your earning potential must drastically affect one of those variables in order to affect your alimony order.
For example, if you quit your job you might not be able to change your alimony order.
This is because the other party could argue that you willfully cut off your source of income and, further, still have the potential to get a new job for a similar amount of pay.
What happens if I miss (or fail to pay) an alimony payment?
In the event that a party fails to pay spousal support, whether intentionally or not, the receiving spouse can file an income deduction order with the court.
An “income deduction order” is a court-approved order to garnish an individual’s wages.
Generally, they are used to collect long-overdue child and spousal support payments.
According to Virginia Code § 20-79.1, both you and your employer must be notified when an income deduction order is filed against you.
You will then have 10 days to respond to the order.
If you fail to respond, your employer will begin deducting money from your paycheck and sending it to the court to pay for the overdue alimony.
Other methods the court uses include seizing your property or holding you in contempt of court (i.e. “putting you in jail until you start making payments”).
If you are having trouble making court-ordered alimony payments, it’s best to have your lawyer file for a modification, instead of going into default.
Alimony, or called spousal support in Virginia, is a court-ordered amount of money that one spouse must pay to the other after a divorce.
Spousal support can be paid indefinitely, over a set period of time, or in a lump sum.
The amount and duration of the alimony payments will depend on several factors, such as the length of the marriage, the financial circumstances of each spouse, and their earning capacity.
There is no mandated formula for calculating alimony, and the amount and duration are determined by the judge on a case-by-case basis.
For this reason, it’s important that you have an experienced attorney to make your case before the judge.