6.7 Spousal Support and Maintenance

• Library: Virginia Family Law: A Systematic Approach (Virginia CLE) (2018 Ed.)

6.7 SPOUSAL SUPPORT AND MAINTENANCE

6.701 Sequence of Determining Issues. When spousal support is sought along with child support and the equitable distribution of property, the court must determine these issues in the proper sequence. The equitable distribution of property is determined first. Spousal support is determined after the equitable distribution decision. ⁴⁹ Child support is determined after spousal support. ⁵⁰

6.702 When Spousal Support May Be Granted. Spousal support may be granted under the following circumstances:

1.	Upon decreeing the dissolution of a marriage, although not upon decreeing the annulment of a void marriage; 51
2.	Upon decreeing a divorce from the bond of matrimony;
3.	Upon decreeing a divorce from bed and board;
4.	Upon decreeing that neither party is entitled to a divorce; or
5.	Upon entry of a decree providing for separate maintenance.

The court has no authority to order payment from the estate of a deceased spouse. ⁵² In addition, the court has discretion to grant or deny an award of spousal support if the party seeking the award has engaged in conduct that would serve as a "fault" ground for divorce. ⁵³ The court also has the power to order support and maintenance for a spouse notwithstanding a party's failure to prove his or her grounds for divorce provided that a claim for support has been properly pled by the party seeking support. ⁵⁴

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If the parties entered into an agreement concerning spousal support that was executed before July 1, 2018 and that is filed before entry of a final decree, the court cannot enter a decree or order unless it conforms to the terms provided in the parties' agreement. ⁵⁵ However, for stipulations or agreements that are executed on or after July 1, 2018, requests to modify spousal support in a way that differs from the terms of the parties' agreement shall not be denied as long as they are based on a material change of circumstances and the stipulation or agreement does not bar that modification. ⁵⁶ To avoid this result, the following language must appear in the agreement, "The amount or duration of spousal support contained in this [AGREEMENT] is not modifiable except as specifically set forth in this [AGREEMENT]." ⁵⁷

6.703 Eligibility. A spouse is not automatically entitled to receive spousal support upon separation or divorce. First, the court must determine that the spouse seeking support is eligible to receive it. In determining whether or not to award support, the court must consider the circumstances and factors that contributed to the dissolution of the marriage. The court is specifically directed to consider the following grounds for divorce under sections 20-91 and 20-95 of the Virginia Code: adultery, willful desertion or abandonment, cruelty or apprehension of bodily hurt, and the conviction of a felony and sentence to confinement for more than one year. ⁵⁸

Adultery is treated differently from the other fault grounds in determining whether or not spousal support should be awarded. The court is barred from awarding permanent maintenance and support to a spouse where there is an adultery ground of divorce that is proven against the spouse seeking the support. The court may, however, grant permanent maintenance and support even where there is an adultery ground for divorce if the court determines from clear and convincing evidence that a denial of support would constitute a "manifest injustice." In determining whether a manifest injustice would result, the court should consider the respective degrees of fault during the marriage and the relative economic circumstances

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of the parties. ⁵⁹ If recrimination precludes a divorce based on a fault ground, the fault conduct of the spouse seeking support does not disqualify that spouse from receiving support. ⁶⁰

The court must terminate spousal support if it finds by clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to marriage for one year or more commencing on or after July 1, 1997. The court must terminate spousal support and maintenance under those circumstances unless (i) a contract or stipulation provides otherwise ⁶¹ or (ii) the spouse receiving support proves by a preponderance of the evidence that termination of the support would be unconscionable. ⁶²

Determining a claim for spousal support involves two steps. The court must first determine whether either party is barred from receiving support because of adultery or another fault ground. Second, if there is no bar to an award of support, the court must weigh the relative needs and abilities of the parties, taking into consideration all of the factors listed in section 20-107.1(E). ⁶³ The party seeking support bears the burden of proving all the facts necessary for an award. ⁶⁴

6.704 Factors to Consider in Awarding Support. After the court has determined that the spouse seeking support is eligible to receive it, the court must consider the following factors in determining the nature, amount, and duration of an award of maintenance and support: ⁶⁵

1. The obligations, needs, and financial resources of the parties including, but not limited to, income from all

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	pension, profit sharing, and retirement plans, of whatever nature; 66
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 capac-ity; 67
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 the party's earning ability; 68

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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; 69
12.	The extent to which either party has contributed to the attainment of education, training,

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