How Spousal Support Would Apply in the Hypothetical Divorce Case

The hypothetical Ashburn divorce case describes a situation representing  the classic basis for spousal support.  This occurs when the parties marry after college and start a family right away.  At the beginning of the marriage, the wife’s contributions focus on raising kids and managing the household while the husband pursues a career to provide the financial resources.  His income is at its lowest point in the beginning of the marriage, when he is starting his career.  Years later, when the wife has performed her obligations and the husband’s income is much greater, the parties may be unhappy in the marriage and want to get a divorce.  Although she has contributed to the marriage, the wife has no financial resources and her career opportunities may be limited.  Economically, the timing of the parties’ major contributions causes a disparate situation.  That is why the husband may have a continued responsibility for support to the wife.

In the hypothetical  Ashburn divorce case, Al Luminum will likely be ordered to pay spousal support both temporarily, while the case is pending, and after the divorce.  A temporary support order, to be paid while the case is pending is not precedent for the final order.   It looks at the immediate needs while spousal support final order looks at future needs.  The barriers to Maggie’ ability to support herself in the future are related to the time she has been out of the workforce.

Maggie put her career on hold to raise children and when she had time to pursue her own opportunities, Al preferred focusing on the opportunities that their children would have rather than those that would further to Maggie’s financial independence.  The length of the marriage was greater than ten years but Maggie has a bachelor’s degree that can provide a foundation to furthering the education or obtaining the job training she needs to enter the job market.  Al has a basis for seeking spousal support that is rehabilitative in nature, thus would end when Maggie can support herself.  Maggie has a basis for seeking more permanent support, however.  The length of the marriage was relatively long and their children are still minors, including a 7 year old.  The outcome will depend on the presentation of the facts in court and the judge’s decision.

Questions to Consider in Spousal Support and the Factors the Court Will Take into Account When Determining Whether to Award Spousal Support and in What Form

The relevant questions regarding spousal support are:  Why does the spouse need support?  How much does the spouse need? What is the other spouse’s financial situation? How much support can the other spouse pay?  How long can the other spouse pay support?  Any facts and circumstances affecting the answers to these questions will be relevant to the support order.  The cost of health care coverage, the cost of daycare, whether any other support obligations are being paid and whether actual support is being provided are specific facts that are relevant.

Spousal support may be awarded in various forms.  Primary questions in spousal support are amount and duration.  The amount is based on relevant conditions and can be made in level payments, varied payments, or a lump sum.  The duration depends on statutory and agreed upon factors as to what would cause it to end.  Tax treatment differs for different payment types.  To seek the payment type that will be the most advantageous, the services of a lawyer are recommended.

In determining whether to award spousal support and the type of payment, amount, and duration, the court will take into account the following:

• 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;
• The standard of living established during the marriage;
• The duration of the marriage;
• The age and physical and mental condition of the parties and any special circumstances of the family;
• 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;
• The contributions, monetary and nonmonetary, of each party to the well-being of the family;
• The property interests of the parties, both real and personal, tangible and intangible;
• The provisions made with regard to the marital property under § 20-107.3;
• The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
• 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;
• 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;
• The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
• Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

Termination of Modification of Spousal Support

Spousal support may be modified or terminated under certain circumstances such as the death of either party, remarriage by the recipient, or cohabitation by the recipient for more than a year “in a state analogous to marriage”.  It is also possible to seek a modification where a material change in circumstance warrants a change.