3.3 Spousal Support Provisions

• Library: Negotiating and Drafting Marital Agreements (Virginia CLE) (2023 Ed.)

3.3 SPOUSAL SUPPORT PROVISIONS

3.301 In General.

A. The Party Not Needing Support.

In Orr v. Orr, ⁴²⁸ the United States Supreme Court struck down Alabama's alimony statute, which provided that husbands, but not wives, may be ordered to pay alimony, as unconstitutional, and the Virginia alimony statutes were subsequently revised. Accordingly, counsel should consider including provisions regarding spousal support of each party by the other. Even when the current circumstances do not warrant an award of spousal support to a party, counsel should include a waiver of spousal support to prevent that party from asking the court to reserve jurisdiction for such an award. ⁴²⁹

The Virginia Court of Appeals held, in Bacon v. Bacon, ⁴³⁰ that "where there is no bar to the right of spousal support [i.e., a finding of fault on the part of the moving party], it is reversible error for the trial court, upon request of either party, to fail to make a reservation in the decree of the right to receive spousal support in the event of a change of circumstances," even though at the time of the decree neither party needed support. ⁴³¹ For agreements executed on or after July 1, 2018, Section 20-109(C) now allows a spouse to file for a change in spousal support based on a material change in circumstances unless the agreement expressly prohibits it. Virginia Code section 20-107.1(D) requires the demonstration of a material change in circumstances where spousal support is reserved in an agreement entered into after July 1, 2020, unless the agreement specifically waives the necessity of proving a material change.

Section 20-107.1(D) also sets forth a rebuttable presumption that the duration of a reservation of support is one-half of the length of time between the date of marriage and the date of separation. The practitioner should keep this presumption in mind when negotiating both the duration of support and the duration of a reservation of support.

B. Formula for Pendente Lite Spousal Support.

Before the 2007 enactment of section 16.1-278.17:1 of the Virginia Code, there was no legislative formula for determining pendente lite spousal support, which obviously affected child support guideline calculations. Many localities created various formulas to keep this from becoming a major impediment to settlement negotiations, but there was no uniformity. With the enactment of section 16.1-278.17:1, a presumption is created as to the correct amount of pendente lite spousal support for cases where the combined monthly gross income of the parties does not exceed $10,000, whether they have children or not. While enacted as a revision to title 16.1, the statute applies to any judicial proceeding involving pendente lite spousal support.

In 2020, section 20-103 was amended to create pendente lite spousal support guidelines. In any judicial proceeding for pendente lite spousal support, subsection 20-103(E) creates a presumption that the amount of spousal support that results from the application of the formula set forth in this section is the correct amount to be awarded.

If the court is determining both an award of pendente lite spousal support and an award of child support, the court must first make a determination of the award of spousal support owed. ⁴³² If the parties have minor children in common, the presumptive amount of an award of pendente lite spousal support is the difference between 26 percent of the payor spouse's monthly gross income and 58 percent of the payee spouse's monthly gross income. ⁴³³ If the parties have no minor children in common, the presumptive amount of the award is the difference between 27 percent of the payor spouse's monthly gross income and 50 percent of the payee spouse's monthly gross income. ⁴³⁴

The court may deviate from the presumptive amount of spousal support for good cause shown, including any relevant evidence relating to the parties' current financial circumstances or the impact of any tax exemption or credits that result from such exemptions that indicates that the presumptive amount is inappropriate. ⁴³⁵ The presumptive formula only applies to cases where the parties' combined monthly gross income does not exceed $10,000. ⁴³⁶

As with child support, deviations are allowed for good cause shown, including any relevant evidence relating to the parties' current financial circumstances or the impact of any tax exemption and any credits resulting from such exemption that indicates the presumptive amount is inappropriate, and the application of the statute is somewhat limited given the monthly income cap. Even so, the statute is of great assistance to counsel trying to reach negotiated out-of-court temporary settlements during the separation and pendency of the divorce suit.

3.302 Special Considerations.

A. The Wealthy Party.

Counsel representing a party with substantially greater income or assets may wish to include a provision in the agreement that the other party has not relied on the wealthier party's representations but has entered into the agreement based on his or her own investigations.

B. Criteria for the Level of Support.

If the spousal support is subject to modification in the future, the criteria for the level of support should be set forth so that the court will have a basis for determining whether a change of circumstances has occurred since the level was set in the agreement.

3.303 Temporary Provisions.

The parties may wish to agree to a temporary level of spousal support until some specified event occurs, such as the sale of a jointly owned residence. The agreement should also provide for the level of support after the temporary situation has passed.

3.304 Waivers.

⁴³⁷ If the agreement is to contain a complete waiver of spousal support, counsel should include as many factors as may be applicable as consideration for the waiver to lessen the risk that the agreement will be set aside. A waiver of spousal support by one party may be consideration for a waiver by the other, resulting in a mutual waiver of support. A party's forbearance to claim support may be consideration for a contract ⁴³⁸ and a statement of the property interest being conveyed in lieu of support may show it to be adequate consideration. ⁴³⁹

While waivers are permissible, they have been invalidated in certain instances where the waiver was found to be unconscionable as a matter of law in light of the disability or necessity of a party. ⁴⁴⁰ The practitioner should consider whether it is appropriate to include a statement that each party is free from any disability or necessity that would make a waiver of support unconscionable.

An attorney for a client seeking waiver of spousal support should consider insisting that the waiving party be represented by counsel, even if his or her client has to pay for the counsel fees.

3.305 Fault Grounds.

If one spouse has been guilty of a fault ground of divorce and thus would be precluded from receiving spousal support under Virginia law, a recital of that bar should be included. The recital may be included twice—once in the preparatory provisions relating that the parties are separated and the basis for that separation and again within the support provisions.

Section 20-107.1 limits the bar to spousal support to a ground of divorce under section 20-91(A)(1) (adultery, or sodomy or buggery committed outside the marriage). Even these grounds are not a bar if the court determines, from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based on the respective degrees of fault during the marriage and the relative economic circumstances of the parties. The bar also applies to a reservation of spousal support. ⁴⁴¹

It is important to note that the court's discretion as to whether to award a fault-based divorce can affect a potential spousal support bar in cases of post-separation adultery. In Wallace v. Wallace, ⁴⁴² the wife, although guilty of post-separation adultery, retained the right to spousal support notwithstanding the prohibition of the statute then in effect against awarding support to a party against whom a fault ground for divorce existed. The court found that the husband had been responsible for the termination of the marriage and that he was not entitled to a fault-based divorce.

In Hall v. Hall, ⁴⁴³ the parties' prenuptial agreement provided certain penalties in the event of infidelity. Specifically, if the husband was proved unfaithful, he would have a spousal support obligation of a longer duration than he would have had if he had been faithful. If the wife was proved unfaithful, she would receive no support. They defined the "proof" required as "a photographic or video record or a finding of adultery in a court of law." The wife filed for divorce based on separation. The husband answered but propounded discovery on the wife's adultery and only tried to amend his answer to allege adultery when the wife declined to respond to his discovery. The trial court struck his pleadings, but the Court of Appeals reversed, finding the wife's adultery or lack thereof to be relevant to the prenuptial agreement.

3.306 Retirement.

Section 20-109(G) requires that, in a contested case, any order granting, reserving, or denying a request for spousal support must provide whether the retirement of either party was considered by the court in reaching its decision. While the statute applies only to contested cases, language in an agreement should address this issue when the spousal support term is being negotiated so that it may not later be raised as the basis for a material change in circumstances. ⁴⁴⁴ It is critically important to expressly state that the amount or duration of spousal support is nonmodifiable if that is the parties' intention, as the most recent amendments to section 20-109(C) provide that a court may not deny a request for modification based solely on the fact that the terms were consented to as part of an...