Alimony, which is more commonly referred to in Virginia as Spousal Support, is one of the most unpredictable components of a divorce case. There are very few bright line rules in the applicable Virginia Code section (20-107.1), rather there are parameters which guide the judge in his or her discretion to selecting an amount and duration for a spousal support award. On any given day, 15 judges hearing the same case are likely to award 15 different amounts of spousal support for 15 different numbers of years. There is not a chart to determine how much to award or when support will end. The common rule of thumb is that if the spouse asking for support can demonstrate a need and the other spouse has the ability to pay support, the court can make an award. If the marriage is over 20 years and the circumstances warrant it, the court will generally order “permanent” spousal support, which means until a legitimate retirement at an appropriate retirement age. For example, for a couple who married when they were 20 and divorced 23 years later, the husband who has always been the bread winner while the wife took care of the home and children will pay spousal support until he retires at a traditional retirement age (i.e.: age 65 or thereabout). If the marriage is short (one Virginia case refers to a 7 year marriage as a short marriage), then the term is much shorter. Often attorneys use the rule of thumb of “Half the length of the Marriage” for a duration estimate. However, that term only exists in the Reservation portion of the Support statute (20-107.1.D), which states that “The court may reserve the right of a party to receive support in the future,” and “there shall be a rebuttable presumption that the reservation will continue for a period equal to 50 percent of the length of time between the date of the marriage and date of separation.” The factors the court must consider in making a determination about spousal support are:
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 nonmonetary, 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 § 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 and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce, as are necessary to consider the equities between the parties.
As you can see, the factors the court must consider are discretionary, which is why spousal support predictions are difficult.