For the Virginia court to order spousal support in that situation, it must first find that it has personal or “in personam” jurisdiction over the non-resident. There are several ways that a court can have personal jurisdiction, per Virginia Code §8.01-328.1. There are two, however, that are of particular importance to parties going through a divorce.
First we have Virginia Code §8.01-328.1(A)(8), which provides that a court may exercise personal jurisdiction over a person who:
…executed an agreement in the Commonwealth which obligates the person to pay spousal support or child support to a domiciliary of this Commonwealth, or to a person who has satisfied the residency requirements in suits for annulments or divorce for members of the armed forces or foreign service officers of the United States pursuant to §20-97….
It is very common that parties to a divorce action enter into marital settlement agreement or “separation agreement,” which contains a provision for spousal support. By entering into such an agreement, which is a binding contract, the parties are able to invoke the protections of Virginia’s laws as they relate to such agreements. For example, if one of the parties has breached a provision in the agreement related to spousal support, the aggrieved party can seek relief in the appropriate Virginia court. By entering into a separation agreement, the party who is to pay support creates a substantial connection with the Commonwealth of Virginia, and, in turn, affords the court personal jurisdiction.
Next we have Virginia Code §8.01-328.1(A)(9), which gives the court personal jurisdiction over someone who:
…maintained within this Commonwealth a matrimonial domicile at the time of separation of the parties upon which grounds for divorce or separate maintenance is based, or at the time a cause of action arose for divorce or separate maintenance or at the time of commencement of such suit, if the other party to the matrimonial relationship resides herein…
Under this provision, if a party chooses to maintain a matrimonial home or domicile in Virginia, he or she is conducting “domestic activities” in the Commonwealth and is also able to invoke the protections of Virginia’s laws. But as a result, that party can therefore be subject to the court’s jurisdiction when it comes to spousal support and other matters related to a divorce.
There are several other ways in which a Virginia court may have personal jurisdiction over a party in a divorce case, which is required to order that party to pay spousal support. But the two provisions above are the most commonly used for obtaining personal jurisdiction over a spouse who has left Virginia (possibly for the purpose of evading spousal support).
A Virginia court may be able to divorce parties, and even make orders regarding the distribution of property; however, a court may only order a party to pay spousal support if it has personal jurisdiction over that party. But issues of personal jurisdiction can be quite complex. If you are seeking spousal support from a spouse who has left Virginia, consult with an experienced family law attorney to discuss your options.
The attorneys at Livesay & Myers, P.C. have years of experience representing both payors and payees in spousal support cases. From our five convenient office locations, we represent clients across Northern Virginia. Contact us to schedule a consultation today.