The term “alimony” is not used in Virginia. Money that must be paid to a former spouse for their support after the divorce is called “spousal support.” The authority to award spousal support is granted to the Circuit Court presiding over a divorce case by Virginia Code Section 20-107.1.

The overwhelming majority of spousal support awards require husbands to pay support to their former wives.  In most divorces, the husband has the higher income and an award of spousal support can be justified on that ground.  However, awards of spousal support in favor of a husband, even when the wife has a higher income, are rare.  Whether it is because husbands don’t request spousal support or because judges harbor a bias against the concept, anecdotal evidence suggests very few husbands obtain an award of spousal support.

Effect of Fault on Spousal Support

The code prohibits an award of spousal support to a spouse who is guilty of one of the fault grounds for divorce listed in Virginia Code Section 20-91(1). The most common of these fault grounds for divorce is adultery. If the guilty spouse has been involved with a person of the same gender, the grounds for divorce are “sodomy or buggery” outside the marriage.

There is an exception, however, for situations in which there is “clear and convincing evidence, that a 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.”  One situation where this provision can be applied is where the guilty spouse has a disability or serious medical condition.

Proof of adultery must be “clear and convincing.” If the evidence is close or merely subjective, the court cannot grant a divorce on the ground of adultery.  In one case, the wife and the man alleged to be her lover traveled together and stayed in the same motel rooms but swore they never had sexual intercourse. The Court of Appeals held that the evidence was insufficient to satisfy the clear and convincing standard and that the divorce had to be based upon a no-fault ground.

There are methods of proving the adultery by clear and convincing evidence. Usually evidence that is strong will result in an agreement by the guilty spouse to waive spousal support. Gathering evidence of adultery must be done very carefully, however, to avoid violating other laws.

In addition to the bar against an award of spousal support in favor of a spouse who has been sexually unfaithful, the court is required to consider the “circumstances and factors” that contributed to the dissolution of the marriage, including the factors mentioned in 20-91(3) (conviction of a felony) and 20-91(6) (cruelty, causing reasonable apprehension of bodily hurt, or willful desertion).  In this context, the circumstances (including infidelity) are factors to be considered but not necessarily decisive.

Form of Spousal Support

The court can order that the spousal support be paid for a limited time, for an unlimited time, or all at once in a lump sum.  If ongoing support is awarded, it is almost always a specified amount per month.  The sum can be spread over two payments within the month so as to coincide with pay dates.

One feature of  temporary spousal support that is awarded for the period while the case is pending is that the ability to invoke the adultery prohibition is limited because the question of whether there was adultery is left for determination at trial.  So, the innocent spouse may have to pay temporary spousal support for an extended period of time while the case is pending, even though adultery can be proved by incontrovertible evidence.

Contempt

Family support orders, both child support and spousal support, are among the few debts for which the debtor can be sent to jail for non-payment.  That is why it is extremely important that a party agreeing to pay spousal support be absolutely certain they can actually pay it.  If they don’t pay the amount ordered by the court, they can be held in contempt and sentenced to time in jail.

Other Factors

In addition to those factors already mentioned, the court is required to consider the following factors in determining whether to award spousal support and, if so, how much:

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 non-monetary, 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 Virginia Code Section 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.

Modification of Spousal Support Awards after Divorce

Any award of spousal support made under this section is subject to adjustment later. A separate code section, 20-109 deals with changing the amount of support. Settlement agreements between the divorcing spouses, however, must specifically provide that they are subject to revision by the court before this section can be invoked.  If they don’t, the constitutional prohibition against altering private contracts can prevent the court from making any change to the amount of spousal support provided in a divorce settlement agreement. Anyone considering an agreement to pay spousal support should consult an attorney and give very careful consideration to the possibility that they may later, through no fault of their own, be unable to pay the agreed amount.

Predicting the Award of Spousal Support

Unlike child support, which is formula driven, spousal support is highly unpredictable. Apart from the list of factors mentioned in the statute, the judge (and sometimes the commissioner in chancery) has extremely wide latitude.  This unpredictability provides a strong incentive to resolve the question ofspousal support by agreement.

Jurisdiction

One further difference between spousal support and child support is that the power to modify spousal support awards generally stays with the state where the divorce is granted. The Virginia code does not authorize the court to transfer jurisdiction to another state and neither does the Uniform Interstate Family Support Act, which many states have adopted.  This can be inconvenient if everyone has moved away from the state where the divorce was granted and one of the parties wants to have the spousal support amount modified.

Enforcement, however, is not necessarily a problem. The order to pay spousal support can be enforced in any state. The normal procedure is to register the decree in the paying spouse’s state by filing certified copies with the local court.  That court can then take the action necessary to collect the money like having the support withheld from pay and holding the delinquent party in contempt.

Payment can also be enforced in the state that granted the divorce. The court there can order wage-withholding and hold a delinquent party in contempt. But often it is more cost-effective to do the enforcement in the state where the paying spouse lives. It is easier to have a party held in contempt and sent to jail in the state where they live for the simple reason that the local sheriff can go to their house and arrest them.  The sheriff from the state where the divorce was granted, on the other hand, cannot cross a state line to arrest someone who hasn’t paid their support and extradition in these cases is rare.

Bob Jeffries is an experienced Virginia divorce attorney who has practiced in the Juvenile and Circuit Courts of Virginia Beach, Norfolk, Chesapeake, Suffolk, Portsmouth, Hampton, Newport News and York – Poquoson since 1998. He can help you to ensure that your rights are protected.