Modification of Spousal Support in Virginia
In divorce cases, the marriage is officially and legally ended when the judge signs the order dissolving the legal bonds of matrimony. For a large number of people, however, a divorce does not mean the severing of all ties with their now ex-spouse. There are some things that will continue to bind many divorced couples together beyond their marriage vows. The immediate example that springs to mind is children. Issues of custody, visitation or child support can come up as often as the needs of a child may change. Eventually, however, children grow up—and though divorced parents will always be linked together through the children they share, there will no longer be the potential of ongoing litigation.
There is one issue, however, that can link former spouses together for the rest of their natural lives: spousal support.
In Virginia, spousal support may be awarded as part of the court’s divorce decree. The court has the power to award spousal support for either a set length of time or with no set end date—in other words, spousal support could last forever. A court can only decide a spousal support case based on the facts at the time the case is heard. What is deemed a fair result (as far as the judge is concerned) may become unfair to one party as time goes on. To account for this possibility, Virginia law allows spousal support to be modified after it is awarded—if one party presents a good enough reason for a modification.
Modification of Spousal Support With a Defined Duration. Virginia Code § 20-109 covers how and when spousal support can be modified in Virginia. In the case of a spousal support award with a set end date, § 20-109 makes it clear that the overall length of support cannot be extended. However, the court may increase, decrease, or even terminate, spousal support in these cases if one side can prove (1) that there has been a material change in the circumstances of the parties that neither party contemplated happening at the time spousal support was initially decided, or (2) that an event the court anticipated would happen during the duration of the spousal support award does not actually happen, through no fault of the parties. If one of these can be proven, the statute basically directs the court to reconsider all of the factors for making an initial decision on spousal support and come up with a new result that is fair as of the current date.
Modification of Spousal Support With No Set End Date. When modifying an award of spousal support with an indefinite duration, however, the process becomes less clear and more difficult. In these cases, § 20-109 simply states that the court may increase, decrease, or terminate spousal support “as the circumstances make proper.” On its face this seems better, because there’s no requirement that a specific thing happen (or not happen) to make a change. In practice, however, this provision places complete discretion into the hands of the judge as far as what does or does not constitute a reason to make a change (up or down) in support. Moreover, unlike modifying support for a set length of time, here the court does not have to reconsider the spousal support factors in coming up with a new award. Modifying spousal support with no end date is about the most extreme example in family law of a case that is determined by the specific facts of the specific parties.
The court generally reserves awarding spousal support of an indefinite duration for divorces that occur after lengthy marriages. These are cases where spouses have become so intertwined through decades of joint decisions that the court simply cannot say how much longer there should be a financial link at the time a divorce is initially decided. With the overall lack of statutory guidance, the probability of fighting and refighting the same battle year after year is high. Paying spouses always believe they are paying too much, and receiving spouses always believe they are not being paid enough.
This ongoing struggle is only compounded by the lack of clear guidance as to what a judge will find to be “proper circumstances” to make a modification, let alone what that modification will end up being. But there is hope for parties facing the prospect of an indefinite duration spousal support award: a separation agreement. If the parties specifically contract between each other that spousal support shall be modifiable in a particular way, then any future court considering modification will have to follow these instructions. Thus, with a properly worded separation agreement, a divorcing couple can save themselves years of litigating and re-litigating spousal support issues.
The family law attorneys of Livesay & Myers, P.C., have extensive experience with spousal support cases of all types, including modification of existing awards of support. From offices in Fairfax, Fredericksburg, Leesburg and Manassas, we represent clients throughout Northern Virginia. Contact us to schedule a consultation today.