Is It Really Cheaper To Keep Her (Or Him)?

Posted on February 12th, 2009, by James Livesay in Divorce, Family Law. Comments Off

Spousal Support in VirginiaSpousal support (alimony) is often the toughest nut to crack in a contested divorce in Virginia. More and more, Virginia Courts seem to be relying on some “local guidelines” in determining spousal support—guidelines that seem to favor the payor of support.

The spousal support issue arises in any Virginia separation or divorce case where the parties have been married for any substantial length of time and there is a significant gap in the parties’ income. When spousal support comes into play, the parties and their attorneys (and the Court, if the parties cannot agree) have to sort out (a) how much spousal support should be paid, and (b) for how long. I won’t get into the “for how long” issue here—perhaps I’ll address that in a future post. But I do want to talk about the “how much” question.

With CHILD support cases, the answer to the “how much” question is usually pretty clear. Virginia has adopted a set of statewide “child support guidelines,” which establish the “presumptive” child support amount. Basically, in a standard child support case you input the parties’ gross incomes, number of children, daycare and health insurance (for the kids) costs into a formula, and the formula spits out a child support amount. That amount is legally presumed to be the correct amount. The Court can order a different amount, but to do so must justify any “deviation” from the guidelines, in writing.

Some issues can arise which complicate the child support calculation—e.g., difficulties in determining a party’s true income, or the application of an alternative formula for “shared custody” situations (where the noncustodial parent has the children over 90 days in the year). But for 90%+ of cases, you input the data into the guidelines, it spits out a child support amount, and you’re done.

Oh, if only spousal support were so cut and dried. In Circuit Court divorce cases, Virginia does not have a statewide formula for determining a “presumptive” amount of spousal support. We do have some local guidelines—in Northern Virginia and Richmond cases we have guidelines from Fairfax, Harrisonburg, and Richmond. These guidelines, however, are in no way binding on the Court. They don’t establish a binding or even presumptive amount of support; in fact, the Judge can completely ignore them.

More than that, these local guidelines were only really designed for establishing “pendente lite” spousal support– basically, temporary spousal support to be paid until the divorce is finalized. Also, the Fairfax guidelines (the most important of the local guidelines for Northern Virginia cases) include the caveat that they were never intended to be used in “high income” situations, meaning cases where one party’s gross income exceeds $10,000 per month.

But, having stated all those disclaimers, I will state that, depending of course on the Judge and the jurisdiction, Circuit Courts often do look to these local guidelines for assistance in determining a proper spousal support amount. I would like to think that Circuit Court Judges who look at these guidelines do so only as a starting point in evaluating spousal support. I fear, however, that more and more our legal system is placing undue weight on these local guidelines—perhaps in many cases to the point of Courts treating them almost like our presumptive child support guidelines.

And here’s the rub: the spousal support guidelines are, to put it politely, fairly unsophisticated. The Fairfax guidelines, for example, work as follows. In cases where no child support is involved, the Fairfax guidelines take 30% of the gross income of the spouse with higher income, and subtract from that 50% of the gross income of the other spouse. The result is the spousal support amount. Where child support is involved, the formula changes to 28% of the higher paid spouse’s income less 58% of the lower paid spouse’s income. (The Harrisonburg and Richmond guidelines follow similar approaches, just tweaking the percentages slightly).

Obviously, not exactly Einstein’s Theory of Relativity, these local guidelines. Note these guidelines do not take taxes into account, nor do they take into account the parties’ actual needs going forward.

I will state that these local guidelines seem to be fairly pro-payor. One must always remember that spousal support will typically be taxable income to the recipient, and tax-deductible by the payor. So, to truly analyze any given level of spousal support, you have to look at each party’s after-tax income given that amount of support. Unfortunately for the payee, Fairfax and Harrisonburg guidelines support will leave the payor with well over half—often approaching 60%—of the parties’ after-tax incomes. Richmond guidelines support also skews in favor of the payor, although not quite as heavily. In higher income cases, these numbers can go completely off the rails, producing after-tax ratios well over 60/40 in the payor’s favor.

Now, the Virginia Code doesn’t say anything about these spousal support guidelines. Instead, the Code lists a series of factors for the Court to consider in determining support—among them, the duration of the marriage, the financial needs of the parties, 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.”

The problem is that the Court, in a contested case, is tasked with translating all of those factors into a dollar amount for monthly spousal support—no easy task. The local guidelines do provide an actual dollar figure, so they at least have that going for them. But again, given that the guidelines do not take taxes or expenses into account, I would hope that Judges look to them only as a starting point in determining support.

However, my hope in that regard may all too often be in vain. There seems to be more and more of a trend in Virginia toward adoption and application of these guidelines. One example: Virginia has now adopted the Fairfax guidelines statewide for determining spousal support in Juvenile and Domestic Relations Court cases. And, I can state that I have seen Circuit Courts looking more and more to these guidelines in divorce cases, as well.

Don’t get me wrong—in most cases where I represent the payee of support, I can put together a strong argument “on paper” for the Court to order far more spousal support than the figure generated by the guidelines. I can point to my client’s needs going forward, which guidelines support (combined with her own income) typically won’t allow her to meet. I can show how guidelines support will produce after-tax incomes heavily weighted in the payor’s favor, and make an argument that the court should instead order enough spousal support to equalize the parties’ spending money.

Those arguments may or may not move a court to award more than guidelines spousal support. It is impossible to predict. But, Virginia law does seem to be moving toward more and more reliance on these spousal support guidelines, for better or worse. For potential payors of spousal support, I believe that is a good thing—as I believe the guidelines are strongly pro-payor, as stated above. But potential recipients of spousal support will be left at quite a disadvantage by continued reliance on these guidelines.

The divorce lawyers at Livesay & Myers represent clients in spousal support cases in Fairfax, Alexandria, Arlington, Manassas, Woodbridge, Stafford, Spotsylvania, Fredericksburg and all of Northern Virginia. Contact us to schedule a consultation today.

See also: Spousal Support Duration in Virginia

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Attorney James Livesay is a Partner at Livesay & Myers. After graduating from the University of Virginia School of Law in 1998, he began his legal career in the Navy JAG Corps, before entering private practice as a Virginia family lawyer in 2001. Along with partner Kevin Myers, Mr. Livesay founded Livesay & Myers in 2003. Today he advises the attorneys in each of the firm’s three offices.

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