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Virginia Spousal Support Issues

Fairfax County also has in effect "temporary" spousal support (i.e., "alimony")(28) guidelines, which, in effect, tend to set standards for most of Northern Virginia at this time. While the child support guidelines "charts" are far too lengthy and complex to reprint or summarize here -- these spousal support guidelines are sufficiently simple to summarize here:

Where child support is not involved:

30% of gross income of spouse with greater income (in calculating gross income; "reasonable business expenses," are deducted, for the self-employed; military spouses should note that their present non-taxable benefits are included in gross income calculations -- i.e., "BAQ, "VHA," "subsistence" allowances, etc.)


50% of gross income of spouse with lesser income.

Where child support is involved:

28% of payor's gross income


58% of payee's gross income.

Consequently, unless the current gross income of one spouse is at least approximately fifty percent greater than that of the other -- yours is not a case where spousal support would presently seem appropriate. There are, though other situations which may warrant "adjustments."

As now expressly noted in the fairfax Guidelines, however; "For high income families, the Fairfax guideline may not be a reasonable indication of appropriate support. In these higher-income situations it is more appropriate to consider the actual needs of the recipient in establishing support."

The most prevalent, powerful, and now, most puzzling "adjustment" to Fairfax Guidelines involves monthly mortgage installments related to the parties' jointly-titled real estate; especially, the last marital residence. In a written 1992 decision published in the Virginia Law Weekly, one Fairfax Judge ordered the departed husband, whose approximately $50,000 per year income was slightly less than that of his active-military-duty spouse, to pay one-half of the couple's $1,700 per month p.i.t.i. installment, as spousal support, under the guise of preserving the marital estate. Since then, first, many Fairfax Judges followed suit, so to speak; but, increasingly, many did not; or limited or qualified such decisions, in ways which were difficult to predict.

Even the Judge who rendered that decision later "limited" it to its particular facts, in deciding another case. The result is now confusion, at best (i.e., so much for our alleged Guidelines!).

Where the spouse seeking alimony is not "guilty" of adultery which caused dissolution of the marriage (and, perhaps, also not of "desertion") -- "reservation" of that spouse's potential "right" to spousal support (i.e., something somewhat akin to a "future disability income policy") might be appropriate (simply because this usually is not worth "waging war" over, does not mean that "reservations" of rights to future receipt of spousal support are not technically available; under pre-July 1, 1998, Virginia law, at least, essentially, if a "non-guilty" spouse even asks for such a reservation, he or she is entitled to it!). Post-July, 1998, law regarding this issue is more complicated, however.

Notwithstanding the fact that, as some practitioners in this field will readily note, the spousal support Guidelines are by their terms applicable only to temporary support hearings -- our experience has been essentially that they are either, in effect, used perhaps sub silentio (by the Judges), in "permanent" support hearings; or serve as one of the few available "yardsticks, " for consideration of settlement of spousal support disputes. Attached hereto you will find a copy of the Virginia statutory provision which specifies the framework which supposedly must be considered by the Judges in rendering "permanent" spousal support awards. The difficulty in translating the enumerated factors into monetary amounts -- at least without some sort of "guidelines" framework as a starting point -- should be self-evident. . .

(2) Time periods for provision of alimony and subsequent adjustments.

Until July 1, 1998, one of the key distinguishing factors between Virginia and other states in domestic cases was that Virginia was (reportedly) the last or second-to-last "lifetime alimony" state. Theoretically, our Courts did not have authority to cut off "periodic" spousal support awards at any time in the future, absent death of either party, or re-marriage of the recipient, or habitual cohabitation for a year or more in a "relationship analogous to marriage" (unless they were entering an Order which merely incorporated the parties' Agreement to a cut-off of spousal support at some other time.) Even in the case of a relatively short marriage, Virginia Courts were not able to establish a future termination date for a periodic spousal support award (short of remarriage of the spouse awarded alimony, habitual cohabitation for a year or more in a "relationship analogous to marriage," or death of either party). Although some Judges attempted to resolve this problem by decreeing only "lump sum" spousal support (payable in installments), "rehabilitative" alimony awards were virtually unknown in Virginia. If a Court made the award (over the objection of either or both parties), it had the power to alter it, later, however, for significant "material changed circumstances."

After years of legislative efforts, though, the 1998 session witnessed enactment of a "rehabilitative alimony" provision. A copy of the provisions are attached. Although these provisions gave little real guidance to our Courts as to how long spousal support awards are supposed to continue, a couple of proposed "presumptions" which were stricken in the final version of the legislation which was ultimately enacted may perhaps still be of assistance in this connection.

That is, where the duration of the marriage prior to the date of separation was five years or less, there would be a 'rebuttable presumption" that spousal support should be awarded only for a defined period of time (at longest; prior death of either party, or remarriage or cohabitation by the recipient would cause the award to end earlier). Where the marital coverture was over twenty years, there would be a rebuttable presumption in favor of "lifetime alimony." And, for marriages where die duration was between five and twenty years, there was to be no presumption.

The argument against using these "presumptions," of course, is that, in enacting the "rehabilitative alimony" provisions, our legislature deleted these proposals; thereby perhaps implying legislative disapproval of them. In addition, the legislature retained the presumption in the provision regarding future "reservations" of the right to spousal support - that there would be a rebuttable presumption that the reservation could be decreed for one-half of the marital coverture! Consequently, as might be imagined, this is presently a largely uncharted area of our legal waters, so to speak.

On the other hand, if an Agreement is reached, you all have much more flexibility in this regard. Typically, flat (unalterable) amounts are provided; or the amounts may be subject to alteration each year, to provide for "cost-of-living" adjustments; or the amounts are subject to pre-ordained cut-off and/or decreases at stated times; or even to complete restructuring at stated times, based on stated formulas (e.g., re-application of the guidelines).

In Agreements, a frequent "cut-off" date with respect to provision of spousal support is the date of receipt of the other spouse's "share" of the pension; largely because, at that time, even if the retired spouse has undertaken additional full-time employment, his or her gross income, including his or her remaining "share" of the pension, will then probably be less than fifty percent more than that of the spouse, when the spouse's share of the pension is included. Other possible reasonable approaches to spousal support cut-offs in Agreements include, in the case of the relatively short marriage, a period of time equal to one-half of the period of marital coverture.

(3)The role of "fault" in alimony determinations.

Finally with respect to spousal support, a few brief notes on the role of ("personal") "fault."

First, it should be noted that the Virginia appellate Courts have consistently stated that alimony is not suppose to be the equivalent of a "pain and suffering" reward to "Innocent," "left" spouses. Essentially, whatever is appropriate in view of "the numbers" is "it," so to speak; spousal support amounts are not suppose to be increased in view of "guilt" of the potential spousal support payor. The "guilt" (or lack of the same) of the potential spousal support payor is focused upon only, in effect, as a possible offset to the guilt of the person requesting spousal support.

With respect to "fault" of that spouse, it is now only fault which causes dissolution of the marriage which is relevant to "permanent" spousal support determinations in Virginia. Even there, it is apparently or probably only adultery (and sodomy, etc.), which "caused dissolution of the marriage" (I.e., usually pre-separation adultery) -- which will probably result in complete cut-off of what otherwise might be a situation ripe for "permanent" spousal support (but the present Virginia provision even allows for spousal support awards to persons guilty of adultery which causes dissolution of the marriage, in rather rare circumstances!). Desertion of the spouse seeking alimony probably also, however, is a matter which such spouses should seek to avoid. One recent case held desertion to constitute sufficient cause to deny a "reservation" of spousal support.

It also should be noted that "temporary" spousal support determinations [pending the outcome of the litigation ("pendente lite")] are rendered, supposedly, without regard to (alleged) fault; on the theory that, at that point, neither spouse has proved (or disproved) the claimed "grounds." Because, in Virginia, these typically one-half hour hearings can be docketed with as little as five days' notice to the other side, and it may take another year or more to get to the juncture of the "final hearing," even where it is probable that the spouse seeking alimony could be proven guilty of misconduct causing dissolution of the marriage, the availability of temporary spousal support for a year or so, and not terminable until and unless the other has expended thousands of dollars in "airing the dirty linens" -- is, indeed, a factor to be reckoned with.

28 Since 1977, termed "spousal support" in Virginia, for constitutional "equal protection" purposes, to eliminate the historical origins of the term "alimony." Although in one 1990 case, Jeff Krause succeeded in having a Fairfax Judge apply the spousal support Guidelines strictly on behalf of a male client, and in a 1995 case, a male client was awarded $2,600/month (one-half of which was in consideration of the large debt with which he had been left) -- Jeff Krause does not suggest that usually men should view themselves as having an equal opportunity of being awarded "spousal support" in Virginia -- even where their incomes are less than fifty percent less than their spouses'. . .

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