Issues affecting Virginia alimony law

Virginia law about spousal maintenance is relatively complex, with recent reforms.

Virginia lawmakers amended spousal maintenance laws in 2018 to address the issue of ex-spouses paying alimony into retirement years, which has been a hot issue for men's rights advocates. These changes modify a Virginia alimony system that retains some traditional aspects related to the impact of marital fault on the right to receive spousal support.

This comes at a time when another pressing alimony issue faces Virginians and others across the country because of changes to the federal tax system.

Spousal support basics

As a preliminary matter, divorcing Virginians may negotiate a marital settlement agreement that contains a provision in which they agree to the terms of an alimony award. If this does not happen, a judge will have to decide whether alimony is proper and what its terms will be.

Alimony in Virginia can be paid in periodic payments (usually monthly) either with a set end date or indefinitely, in a lump sum or a combination of these. The right to future alimony through a certain date may also be reserved by court order.

The court must determine the features, amount and length of a spousal support award by considering a long list of specific factors related to finances and assets, the marital standard of living, length of marriage, ages and health of spouses and children, family circumstances, financial and nonmonetary contributions to family "well-being," earning capacity and job opportunity, contribution to the career of the other spouse, tax ramification and others.

There are provisions for modifying spousal maintenance awards "as the circumstances may make proper," except in situations when specific language prohibiting it is in a settlement agreement.

The obligation terminates upon the death of either ex-spouse, remarriage of the recipient and in some situations of recipient cohabitation with another partner.

Retirement reform

In mid-2018, new legislation took effect that specifically says that the reaching of full retirement age of a paying spouse "shall be considered a material change in circumstances" for the purpose of whether an alimony award should be modified. The new law adds six specific factors the judge must consider when retirement is the change in circumstances that may trigger modification.

Moral issues

Some states' laws explicitly say that marital fault is not to be considered in the decision whether to order alimony (sometimes except for a history of abuse or violence). Virginia's spousal support laws, on the other hand, give negative behavior of a spouse more weight.

For example:

  • Permanent alimony is not available to someone who engaged in adultery unless this would be a "manifest injustice" because of "respective degrees of fault during the marriage and the relative economic circumstances."
  • Virginia law specifically requires the judge when he or she decides whether to order alimony to consider the reasons for the divorce, including adultery, felony conviction with at least one year of confinement after which the spouses did not live together, cruelty, creating fear of physical harm, desertion or abandonment.
  • One factor that the judge must weigh in shaping an alimony award is the "circumstances and factors" that contribute to the marital breakdown, including the ground for divorce.

Federal tax issues

Last year's federal tax reform made a major change to the tax treatment of alimony beginning in 2019. For 75 years, alimony has been deductible to the payor and taxable income to the recipient. This has in general made it easier for the payor to pay support because of the associated tax relief.

For agreements signed or divorces started after 2018, the deduction will be eliminated and alimony will not be taxable to recipients. Some speculate that this change may make paying spouses less willing to agree to generous support and more likely to fight alimony in court.

Anyone facing alimony issues, especially those of complexity described in this article, should seek immediate legal advice, especially if there is concern about the 2019 tax changes and a spouse should take quick action.

The family lawyers of Barnes & Diehl, P.C., represent clients facing alimony and other issues related to divorce throughout Virginia.