Just the Facts: Spousal Support in a Virginia Divorce

April 29, 2014

alimony-spousal-support“Alimony” and “Spousal Support” are the same thing. In Virginia, alimony is called “spousal support”. Also, alimony is sometimes referred to as maintenance. To the IRS, though, it’s all the same: “Alimony”.

Spousal Support is not guaranteed in Virginia. In Virginia, Spousal Support is neither presumed to be appropriate in any particular type of divorce case nor is it presumed unnecessary in any particular type of case in divorce case. Spousal Support is awarded on a case-by-case basis (both in the courts and in mediation).

Spousal Support is often awarded to SAHM’s (stay at home mothers), spouses who have a much lower income than the other spouse, spouses who have the potential to be financially independent (but need help getting there), and spouses who remain in an expensive-to-maintain family residence (usually for the sake of the children). Spousal support that is temporary, and designed to financially assist the receiving spouse while she (or he) prepares for employment, is referred to as “Rehabilitative Support”.

Need-Based Calculations versus Formula-Based (Pendente Lite) Calculations. In Virginia, the divorce courts utilize specialized calculations, called pendent lite spousal support calculations. This formula, originally intended to be a temporary calculation used for emergency situations, but now used often by the courts, lawyers and mediators when trying to determine a “fair” amount of spousal support, holds a lot of clout in the courthouse (Fairfax, especially). If your case looks like an alimony case, it is usually recommended that you run the pendente lite calculation to see what the “risk” is to the payer, and what the possible monthly award will be to the recipient.

To determine a more “real life” amount of necessary spousal support, a basic need-based approach is also helpful. Need-based calculations require both spouses to list their expenses (and projected expenses). These expenses are then compared to the net income available to support two households (which also includes the child support to be paid).

Often times, there will be a shortfall in both parties’ ability to pay their expenses. With budgeting adjustments, creativity and planning – alimony often being a chief player in the mix – Graine Mediation is able to help couples settle most cases despite the financial hurdles involved.

What are the tax effects of spousal support? The recipient is taxed on alimony at her (or his) tax rate. In other words, alimony is considered “earned income” by the IRS. The payer of spousal support is allowed to deduct the alimony paid, dollar for dollar, from his (or her) gross income, thereby decreasing the income upon which he (or she) will be taxed. In other words, the payer’s adjusted gross income is decreased by the amount of alimony paid. The party who receives the spouse support, on the other hand, will pay taxes on that money at the same rate as her (or his) earned income is/would be taxed.

What is the effect of spousal support payments on child support? Since alimony (spousal support) increases the gross income of the receiver, and decreases the gross income of the payer, the payment of spousal support decreases the presumed child support amount when calculated using the Virginia Guideline’s formula.

Is Spousal Support modifiable? Spousal support is modifiable – both in terms of the amount and/or duration – depending on how the Mediated Property Settlement Agreement is written (i.e. what the parties agree to). If a couple agrees that the spousal support award is to be modifiable, the terms of that modifiability must be stated very clearly in the Mediated Property Settlement Agreement. Otherwise, the court may base a future decision regarding modification of a spousal support award on the “default” standard: “Whether or not there has been a material change in circumstances not reasonably contemplated by the parties”.

Can there be no spousal support awarded at divorce, but a window left open for an award at a later date? The possibility of a future award of spousal support may be left open in a Mediated Property Settlement Agreement. The term for this is “Reviewability”. Clients may leave a period of review open — whether or not there is an actual dollar amount of spousal support to be paid. The period of time in which the parties may seek an award of spousal support (the review period) may be whatever is agreed upon by the parties. If a period of review is left open, but no time period is specified, the “default” in the law is 50% of the length of the marriage.

Leaving a period of review open is useful if the potential recipient feels insecure about his or her future earning power, but there is no actual need for alimony at the time of settlement.

How long does Spousal Support last? There is no clear law on this, but the rule of thumb in Virginia, when spousal support is deemed appropriate, is 50% the length of the marriage. It depends, of course, on the purpose of the spousal support (e.g. to help get a mother back on her financial-feet, to allow time for a parent to get re-trained/degreed, to offset the costs of living expenses for a specific period of time, to provide full and ongoing support to a former spouse, etc.)

In marriages of greater than 20 years, where the spouse seeking support was not an income earner, or her (or his) income is relatively low compared to the other spouse, permanent alimony (or at least up until the other spouse’s retirement) might be appropriate. This is not the law, but both parties should be aware of this legal trend in Virginia, especially where the spouse seeking the support is on the older side.

Is adultery a bar to spousal support? If the spouse against whom an award of spousal support is sought (the bigger earner) is able to prove the ground of adultery against the spouse seeking the support, there will be no alimony awarded. However, proof is often hard to come by. Also, if the court finds that a denial of spousal support to the adulterer would be “manifestly unjust”, the judge can award it to her (or him) regardless of the marital transgression.

What happens when the party receiving spousal support gets remarried or cohabits: Unless otherwise agreed by the parties, remarriage or cohabitation “in a relationship analogous to a marriage for a period of 1 year or more” (statutory definition) will result in the cessation of all spousal support payments. Of course, the term “relationship analogous to a marriage” is not clearly defined in the law and, in some mediations, clients are urged to discuss and determine what that phrase means to them (in order to avoid future litigation).

What does “Child Contingency” and “Recapture of Alimony” mean? The tax law related to alimony is fairly complex. Two areas, in particular, often come up in a divorce mediation: Child Contingency and Recapture of Alimony.

The Child Contingency rule has to do with the IRS’s sensitivity to taxpayers classifying payments as alimony (to get the tax deduction) when, in reality, those payments are really a form a support for the children (child support). The Child Contingency rule can be triggered when an award of alimony ends at the same time, or near the same time (within 6 months to a year, depending on the specific circumstances), of a child-related event (e.g. child turning 18 years old, graduation from high school). For more detail, see my Fairfax Divorce Blog article at https://fairfaxdivorceblog.com/?s=contingency

In a Recapture of Alimony situation, the IRS is looking for deductible alimony payments made, during the first three years following a divorce, which are actually more in the nature of a property distribution. Once again, the IRS is very sensitive to parties classifying payments as deductible alimony when those payments are more aptly classified as some other sort of non-deductible payment such as part of the equitable distribution and division of property (which includes the transfer of money from one spouse to another and may be in the form of a lump sum or paid out in periodic payments). For more detail, see my Fairfax Divorce Blog article at https://fairfaxdivorceblog.com/?s=recapture

Seek Professional Guidance: The law regarding spousal support in Virginia and the Federal Tax Code is fairly complex. Not only that, but the relationship between spousal support, child support and the equitable distribution of property and debt can be overwhelming and easily misunderstood. If you think that your case may involve a need/request for alimony, seek professional guidance from a lawyer-mediator. We are here to help: Robin Graine, JD – Graine Mediation – 571-220-1998.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

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FAMlaw Seminar Announcement

April 16, 2014

Robin Graine to Speak at FAMlaw Seminar

May 13, 2014 ~ Fairfax, VA

Virginia State Bar Approved for MCLE Hours

             On Tuesday, May 13, 2014, Robin Graine, JD of Graine Mediation will be speaking, along with a distinguished panel of lawyers and judges, at FAMlaw’s Fairfax Seminar: Practicing Family Law; Avoiding Malpractice”

 To pre-register for this seminar, visit www.famlawseminars.com or call 800-272-5053.

 8:30am – 4:30pm on Tuesday, May 13, 2014 – Fair Oaks Marriott

11787 Lee Jackson Memorial Hwy, Fairfax, VA 22033

$249 registration fee for the first attendee

$189 for 2nd and 3rd registrant from same firm

            Ms. Graine will be giving a talk on the importance of mediation as a settlement option when couples decide to get a divorce. She will also give the nuts and bolts of practicing mediation in Virginia. Specifically, Ms. Graine will cover:

  • What is mediation?
  • What does a typical mediation look like?
  • What needs to be included in an Agreement to Mediate?
  • Do clients have rules to follow in mediation?
  • Do mediators have rules to follow?
  • How do mediators maintain their neutrality?
  • Is mediation confidential?
  • Are mediators allowed to also practice law?
  • What do you do, as a mediator, when clients “lose control”?
  • Is there a difference between court ordered and voluntary mediation?
  • What does the term “mediator as educator” mean?
  • Are there differences between a Mediated Property Settlement Agreement and an attorney drafted Property Settlement Agreement?
  • What is the criteria and training necessary to become a mediator?

Other seminar highlights include:

  • How to avoid QDRO and divorce malpractice lawsuits
  • What does divorce litigation look like from the bench?
  • How to properly use support-based QDROs
  • Expert Analysis of Virginia Code §20-107.3 (equitable distribution of property & debt)
  • Strategies for tough child custody & spousal support cases

Other speakers include:

Raymond S. Dietrich, JD

– Founder of QDRO Trak

– Author of Qualified Domestic Relations Orders: Strategy and Liability for the Family Law Attorney (Matthew Bender 2013 ©)

Principal attorney in the Galleon Network – a national network of licensed attorneys specializing in the drafting and litigation of QDROs and COAPs for lawyers and clients

Honorable Lorraine Nordlund, 19th Judicial Circuit of Virginia (Fairfax)

– Serving Fairfax County as a judge since 1996; sworn in Circuit Court on February 1, 2010

– Reputation in the legal community for thoughtful and fair decision-making

David L. Duff, JD

– Founding, principal attorney at The Duff Law Firm (Fairfax, VA)

– Practicing law since 1976

– Divorce attorney as well as personal injury, auto accidents, and legal malpractice

John C. Whitbeck, Jr., JD

– Founder of Whitbeck Cisneros McElroy, P.C.

– Practice focuses on family law, education law, criminal law, mental health law and civil litigation

– Former professor of law at George Mason University Law School

– Former director of George Mason Mental Illness Clinic

Alanna C.E. Williams, JD (Duff Law Firm)

– Reputation in the community as a tenacious advocate for divorce clients as well as an effective negotiator

– Joined The Duff Law Firm in 2004; made a Principal of the firm in February 2009

Wesley P. Gelb, JD

– Partner at Ain & Bank, Washington, DC

– Practice focuses on family law and general litigation

– Broad experience litigating family matters in Washington, D.C., Virginia and Maryland


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