6.7 Court May Decree Maintenance and Support for Spouses

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

6.7 COURT MAY DECREE MAINTENANCE AND SUPPORT FOR SPOUSES

6.701 Entitlement to Spousal Support. In Stubblebine v. Stubblebine, ³⁸⁸ the Virginia Court of Appeals held that Virginia law provides that

[a] spouse's entitlement to support and the amount of the award are matters within the sound discretion of the trial court. In determining the amount of an award, the court must consider all of the factors in [section] 20-207.1. ³⁸⁹

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However, as stated in McKee v. McKee, ³⁹⁰

[g]enerally, "one who seeks spousal support is obligated to earn as much as he or she reasonably can to reduce the amount of the support needed." However, so long as the spouse seeking support has not "unreasonably refused to accept employment," the spouse is "entitled to a reasonable time to secure employment." ³⁹¹

Nevertheless, decisions concerning both types of support rest within the sound discretion of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the evidence. ³⁹²

6.702 Statutory Basis for Spousal Support. The statutory basis for an award of spousal support is found in section 20-107.1(A) of the Virginia Code, which provides as follows:

Pursuant to any proceeding arising under subsection L of § 16.1-241 or upon the entry of a decree providing (i) for the dissolution of a marriage, (ii) for a divorce, whether from the bond of matrimony or from bed and board, (iii) that neither party is entitled to a divorce, or (iv) for separate maintenance, the court may make such further decree as it shall deem expedient concerning the maintenance and support of the spouses, notwithstanding a party's failure to prove his grounds for divorce, provided that a claim for support has been properly pled by the party seeking support. However, the court shall have no authority to decree maintenance and support payable by the estate of a deceased spouse.

6.703 Statutory Factors for Spousal Support. If the court does not find fault by the payee spouse that would bar spousal support, there is a duty within the limits of the payor spouse's financial ability to maintain the payee spouse according to the station in life to which that party was accustomed during the marriage. The court must balance the relative needs

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of the parties against the payor spouse's ability to pay. ³⁹³ The court does this by weighing the statutory factors in section 20-107.1(E) of the Virginia Code. The statutory factors are:

1.	The obligations, needs, and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
2.	The standard of living established during the marriage;
3.	The duration of the marriage;
4.	The age and physical and mental condition of the parties and any special circumstances of the family;
5.	The extent to which the age, physical, or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
6.	The contributions, monetary and nonmonetary, of each party to the well-being of the family;
7.	The property interests of the parties, both real and personal, tangible and intangible;
8.	The provisions made with regard to the marital property under section 20-107.3;
9.	The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
10	The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;

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11.	The decisions regarding employment, career, economics, education, and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
12.	The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
13.	Any other factors, including the tax consequences to each party and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce, as are necessary to consider the equities between the parties.

The statutory factors listed at (4) and (5) in the above list involve the health of the client. At this time, the issue of the availability of health care is unsettled. Especially for a client with any pre-existing conditions, counsel may want to present evidence to the court about the actual cost of health insurance for the client, as well as document the existing amount spent on health insurance and what the client's condition will require. The client's health condition may necessitate obtaining the client's medical records to establish these facts. It may be necessary to retain the services of an expert who can analyze this aspect of an award of spousal support. In addition, with an older client, counsel should be familiar with the provisions and potential availability of Medicare.

6.704 Pleadings. There are no special rules regarding pleading factual allegations concerning spousal support. When spousal support is sought, counsel should include information describing the employment and salary of the party being asked to pay support and contrast this information with the information for the payor spouse. There should be a statement that the plaintiff has a need for spousal support and the defendant has the ability to pay spousal support.

Aside from the factual allegations in the complaint for divorce, it is important to specifically request an award of temporary and permanent spousal support in the prayer for relief. Counsel may not rely on the general prayer for relief "for such other and further relief as to equity may seem meet

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and the nature of [the] case may require." ³⁹⁴ If spousal support is not requested, the circuit court does not have jurisdiction to make a spousal support award. ³⁹⁵ In addition, a reservation of spousal support must be included.

6.705 Types of Spousal Support. Spousal support can be made in periodic payments for a defined duration, in periodic payments for an undefined duration, or in a lump sum award. ³⁹⁶ The court may use any combination of these forms of spousal support. ³⁹⁷ Periodic payment of spousal support is usually referred to as "rehabilitative alimony." If periodic payment of spousal support is awarded, the court in its findings must identify the basis of the nature, amount, and duration of the award and, if appropriate, must specify the events and circumstances reasonably contemplated by the court that support the award. ³⁹⁸

6.706 Duration of Spousal Support. Section 20-107.1(C) of the Virginia Code allows the court to award support and maintenance to a spouse in periodic payments of either defined or undefined duration, as a lump sum award, or in any combination of these methods.

If spousal support is ordered by a court, spousal support terminates upon the remarriage or death of either spouse. ³⁹⁹ In addition, section 20-109(A) provides that

[u]pon order of the court based upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more commencing on or after July 1, 1997, the court shall terminate spousal support and maintenance unless (i) otherwise provided by stipulation or contract or (ii) the spouse receiving support proves by a preponderance of the evidence that termination of such support would be unconscionable. The provisions of this subsection shall apply to all orders and decrees for spousal support, regardless of the date of the suit for initial

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setting of support, the date of entry of any such order or decree, or the date of any petition for modification of support.

6.707 Burden of Proof. The burden of proof is on the party seeking spousal support. ⁴⁰⁰ The legal standard when making a spousal support award is that the trial court must balance the needs of the party seeking support against the payor spouse's financial ability to pay. ⁴⁰¹ The trial court is to consider a spousal support award based on the parties' current circumstances and what is reasonably foreseeable. ⁴⁰² However, the court has no authority to order payment of spousal support from the estate of a deceased spouse. ⁴⁰³ If spousal support is awarded, the final decree of...