Modification of Spousal Support When a Separation Agreement Is Silent About Modification
Until these recent changes in the law, it has been well settled in Virginia that if a separation agreement (frequently referred to as a “marital settlement agreement” or “property settlement agreement”) is silent as to whether an award of spousal support is modifiable due to a material change of circumstances, then the presumption by a court is that the award was fixed and could not be revisited or modified. As a result, some parties were signing agreements with the intent that they would have the ability to modify the spousal support award, but instead, would later discover that because the possibility of modification was not addressed in the separation agreement, then nothing could be done by the courts despite there having been a material change in circumstances.
Beginning on July 1, 2018, if a separation agreement does not affirmatively state whether the spousal support award is meant to be permanent, or in other words non-modifiable, then the presumption will be that the spousal support award will always be modifiable based upon a material change in circumstances. In simpler terms, the parties must take affirmative steps in drafting a separation agreement to ensure that the support provisions are non-modifiable if that is the parties’ expectation. This new legislation, which applies only to agreements executed on or after July 1, 2018, should help to address and minimize any confusion as to the intent of the parties when it comes to modification of spousal support.
Retirement Constitutes a Material Change of Circumstances
The General Assembly has also clarified the law as to whether the payor spouse’s retirement constitutes the type of “material change of circumstances” necessary to allow for modification of a spousal support award. In the past, the case law was inconsistent as to whether a payor spouse’s voluntary retirement constitutes a material change of circumstances for these purposes. However, new language in Virginia Code §20-109(E) provides that the “payor spouse’s attainment of full retirement age shall be considered a material change in circumstances” (emphasis added).
Under this code section, “full retirement age” means “the normal retirement age at which a person is eligible to receive full retirement benefits under the federal Social Security Act.”
This new language does not guarantee that the payor spouse would obtain a decrease or termination in his or her spousal support payments, but it does permit the payor spouse to get before the court again to present evidence based upon the factors set forth in §20-107.1 and §20-109(F) for the court to determine whether a modification of spousal support is warranted.
This new language also does not preclude a party from filing a modification petition prior to the payor spouse reaching age 67 (the maximum social security age as currently defined by the federal Social Security Act) if a party enters into early retirement. Whether a material change of circumstances had occurred would be decided on a case-by-case basis in those situations.
As noted, new language in §20-109(F) provides specific factors to be considered by the court in determining whether to modify support based on the payor spouse’s retirement. These factors include: whether the retirement is mandatory or voluntary, the current age and health of the parties, and the assets or property interests of each party from the date of the initial order to the date of the hearing. The last factor reverses the current approach by the courts, which only considered the assets of the payor spouse—rather than the financial positions of both parties—during a modification hearing.
Furthermore, new language in §20-107(G) requires that any order issued by the court which grants or reserves spousal support should identify if the retirement of either party was contemplated and considered by the court, and which facts were considered as they relate to retirement. Hopefully, this requirement for a court’s order to provide an explanation will lessen the amount of litigation brought as to whether retirement was contemplated at the time of the spousal support award.
Of note, unlike most other substantive changes to the law that usually apply only prospectively, Section 20-109(F) can be applied retroactively to modifications or termination of spousal support irrespective “of the date of the suit for initial setting of support or the date of the entry of any such order or decree.”
Consideration of Assets or Property Interests of Both Parties During Modification Hearings
As stated above, new language in §20-109(F) allows the court to consider the assets or property interests of both parties when considering whether to modify spousal support based on the retirement of the payor. In addition, new language in §20-109(G) takes this a step further, allowing the court to consider the assets or property interests of both parties when considering all spousal support modification petitions. This is quite a departure from established Virginia case law, which only allowed a court to consider the payor spouse’s assets and property.
The General Assembly in this last session deviated substantially from established practices in Virginia when it comes to modification of spousal support. If you are the payor or payee in an existing spousal support order, or potential upcoming order, be sure to consult with an experienced family lawyer to determine how the changes might affect your case. The family law attorneys at Livesay & Myers, P.C., have extensive experience with spousal support cases of all types, including modification of support. From offices in Fairfax, Fredericksburg, Leesburg and Manassas, we represent clients throughout Northern Virginia. Contact us to schedule a consultation today.