The Fairfax County Circuit Court recently issued an opinion that sheds light on an important aspect of Virginia divorce law: when divorcing parties include a provision for spousal support in a separation agreement that is incorporated into a divorce decree, that spousal support can only be modified later if the language of the agreement specifically allows for modification.
In Gordon v. Gordon, the parties divorced in 2003 after signing a separation agreement that provided for an award of spousal support (alimony). The Agreement made support non-modifiable, stating:
The husband agrees to pay to the wife, as and for her non-modifiable support and maintenance, the sum of One Thousand Dollars ($1,000.00) per month, the initial payment to be made on the first day of the month following execution of this Agreement by both parties, and to continue in consecutive monthly installments on the first day of each month thereafter until such time as the wife’s remarriage or death, or husband’s death, whichever first occurs.
Years after the divorce, the husband lost his job, which paid over $100,000 per year. He was only able to find a new job that paid a small fraction of his previous salary, and as a result could no longer afford to make his spousal support payments.
When the husband moved to reduce his spousal support, the court seemed sympathetic. The court’s opinion noted that to deny the husband’s motion would be to impose “a Dickensian result… given that if the Husband is truly unable to earn enough to pay spousal support, then he may at some point end up in jail.” The court nevertheless proceeded to deny the husband’s motion.
Unfortunately for the husband in this case, Virginia law is very clear that the court had no authority to grant his motion. The parties had stipulated to an amount of spousal support in their separation agreement, which was incorporated into the parties’ divorce decree without objection. Therefore, the court was limited by Virginia Code Section 20-109(C), which provides that when a separation agreement setting spousal support is incorporated into a divorce decree, “no decree or order directing the payment of support and maintenance for the spouse… shall be entered except in accordance with” that agreement.
In other words, because the spousal support language of the parties’ separation agreement had not specifically made support modifiable, but had indeed characterized the support as non-modifiable, the court had no choice but to deny the husband’s motion to modify support. No other result would have been consistent with the parties’ separation agreement.
This case illustrates the great importance for the payor of support, of including language in any separation agreement allowing support to be modified based upon a material change of circumstances. Surely the husband here did not anticipate that he would be unable to make his spousal support payments. Surely he thought he would have a legal remedy in the event such a situation were to occur. On this, he was wrong, and now he must suffer, in the court’s words, a “Dickensian result.”
If you are facing a divorce in Virginia, do not sign any agreement providing for the payment of spousal support (or for anything else) without first reviewing it with an experienced family law attorney. From offices in Fairfax, Fredericksburg and Manassas, the experienced divorce lawyers at Livesay & Myers represent clients across Northern Virginia. Contact us to schedule a consultation today.