Va 20-107.1
Magdalena Liendo
A. Upon entry of a decree providing for (i) the dissolution of a marriage, (ii) a divorce, whether from the bond of matrimony or from bed and board, or (iii) separate maintenance, where an order for spousal support or separate maintenance has been entered by the court, the court may order a party to (a) maintain any existing life insurance policy on the insured party's life that was purchased during the marriage, is issued through the insured's employment, or is within effective control of the insured, provided that the party so ordered has the right to designate a beneficiary and that the payee has been designated as a beneficiary of such policy during the marriage and the payee is a party with an insurable interest pursuant to subsection B of 38.2-301; (b) designate the other party as beneficiary of all or a portion of the death benefit of such life insurance for so long as the insured party so ordered has an obligation to pay spousal support to the other party, provided that the party so ordered has the right to designate a beneficiary and that the payee has been designated as a beneficiary of such policy during the marriage and the payee is a party with an insurable interest pursuant to subsection B of 38.2-301 in accordance with the terms of the policy; (c) allocate the premium cost of such life insurance between the parties, provided that all premiums shall be billed to the policyholder; and (d) order the insured party to execute all appropriate forms or written consents to require the insurer to provide information to the party beneficiary as to the good standing of the policy and the maintenance of that party as beneficiary to the extent required by the order entered pursuant to this section. Any obligation or requirement under such an order shall cease upon the termination of the party's obligation to pay spousal support or separate maintenance.
C. Upon motion of either party, any order entered pursuant to this section may be modified upon a material change of circumstances, including a change in marital status of the payor spouse, and in consideration of the factors set forth in subsection B. This provision shall not permit the change in marital status of the payor spouse to be considered as a factor under 20-107.1 or considered a material change in circumstances in any proceeding related to the modification of spousal support.
D. Nothing in this section shall be construed to create an independent cause of action on the part of any beneficiary against the insurer or to require an insurer to provide information relating to such policy to any person other than the policyholder without the written consent of the policyholder or unless ordered by the court.
F. In the event a group policy issued by an employer that is subject to a court order pursuant to this section is terminated or canceled by the employer or there is an involuntary change in employment by the payor causing the policy to no longer be in effect, such circumstances shall not be the basis of any finding of contempt against the payor arising out of an order entered pursuant to this section.
If the party seeking spousal support is not barred from receiving it, the court must then determine the nature, amount and duration of a potential spousal support award, by considering the factors found in Virginia Code 20-107.1. These factors include: the incomes and financial needs of both parties, the duration of the marriage, the standard of living established during the marriage, etc. An important factor in many cases is: [t]he 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.
Virginia law allows the court to find a party is voluntarily unemployed or voluntarily underemployed, and to calculate spousal support based on a higher income than he or she is actually earning. For more information, see Voluntary Underemployment In Virginia Support Cases.
Under Virginia Code 20-107.1, the same factors that govern the court in determining an amount of spousal support also govern it in determining the duration of support. The Virginia Court of Appeals recently reiterated the importance of the those factors in setting a duration for spousal support, in the Fairfax County divorce case Cleary v. Cleary.
The parties in Cleary were married for 17 years and had three children during the marriage. Both parties were employed, with the husband working as a financial advisor and the wife working as an independent contractor. The court granted the wife a divorce on adultery grounds, and made a spousal support award of 15,000 per month for 60 months. In formulating the amount of the award, the court made a detailed finding using the factors outlined in the Code, but failed to specify why the award was for a period of five years. In other words, the court used the factors found in Virginia Code Section 20-107.1 to justify the amount, but not the duration, of support. On appeal, the wife challenged the duration.
The Court of Appeals overturned the five-year alimony award, finding that pursuant to Virginia Code 20-107.1(E) the trial court is required to identify specific factors when it sets a limited duration award. The court reasoned that this is necessary for not only consistency between cases, but also for potential modification of an award.
Prior to January 1, 2019, spousal support payments were usually considered taxable income to the payee and tax-deductible by the payor. This was an important consideration in any spousal support case, especially given the fact that the parties are usually in different tax brackets.
Therefore, effective January 1, 2019, spousal support paid by the payor is no longer deductible by the payor or included as taxable income to the payee for all new orders or agreements entered into after that date. These new rules apply to both temporary support paid during the course of the case in litigation, and to support payments ordered or agreed upon as a final resolution of the case.
16.1-278.17:1 only technically applies to JDR court cases. However, effective July 1, 2020, Virginia Code 20-103 was amended to specifically incorporate the same pendente lite spousal support guidelines in circuit court cases as in JDR court cases in Virginia.
Remember that the pendente lite guidelines do not apply to cases where the combined monthly gross income of the parties exceeds $10,000. In those cases, the court must look to the factors found in Virginia Code 20-107.1 in determining any pendente lite spousal support amount.
As stated in the Tax Consequences of Spousal Support section above, the The Tax Cuts and Job Act (TCJA) of 2017 changed federal law to eliminate the deductibility of spousal support. This means that new spousal support awards after January 1, 2019 are non-deductible by the payor and non-taxable to the payee. Virginia courts were left to grapple with the proper manner in which to respond to this enormous change in the law.
In response to this change brought about by the TCJA, the Virginia legislature revised the pendente lite spousal support guidelines, effective July 1, 2020. Effective July 1, 2020, the pendente lite spousal support guidelines in Virginia are:
The revised pendente lite guidelines apply to all support cases in juvenile court, all divorce actions in circuit court, and all separate maintenance claims in circuit court that begin after July 1, 2020.
For spousal support to be modifiable, there needs to have been a material change in circumstances since the date of the court order establishing the initial obligation. But not all such changes in circumstances justify a modification of support. In general, the change must be involuntary. For example, a support payor cannot quit his or her job and expect to have support reduced. The same is probably true if the payor is fired for cause.
The attorneys at Livesay & Myers, P.C. have years of experience representing both payors and payees in spousal support cases. From our five convenient office locations, we represent clients across Northern Virginia. Be sure to read our client reviews, then examine the profiles of each of our attorneys to find the one who is the best fit for you.
However, over time, many of the courts (Fairfax County in particular) have come to rely on the pendente lite formula as a fair barometer of what the spousal support amount should be. Of course, this is dependent on whether the case merits an award of spousal support in the first place (which is always a pivotal question).
For marriages over 20 years, divorcing spouses need to be prepared for serious discussions -- and even court rulings -- which require permanent alimony. However, even in long-term marriages, Virginia judges, are required to consider many factors related to retirement before making a spousal support award. This is particularly true since the implementation of changes to the law in July, 2018. (VA Code section 20-107.1(F))
The following is a comprehensive list, pursuant to 20-107.1 of the Virginia Code, of all the criteria that must be considered by courts prior to making a spousal support award. Though parties are not required to go through this same list when settling their alimony issues outside of court, it is a good idea for divorcing couples to consider these same or similar factors when negotiating alimony:
The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce.... In determining the nature, amount and duration of an award pursuant to this section, the court shall consider the following:
It is important, when drafting a Marital Settlement Agreement and MSA, to clarify whether or not an award of spousal support is modifiable or not. If it is modifiable, the terms of that modifiability may be spelled out in detail, or the basic statutory language can be used. The basic statutory language is: