Does Virginia Recognize Alimony Or Spousal Support Awards In A Divorce Case?
Yes, the court generally wants the parties to leave the marriage on as equitable footing as possible. Whether someone receives alimony or spousal support is determined by balancing the seeking party’s need and the paying party’s ability to pay. When there is a big discrepancy in the incomes, this analysis is clearer. For example, the classic scenario is the stay-at-home parent who left their job to raise the kids and support the other parent’s career choices as they have the opportunity to rise in the ranks and receive promotions. In situations like this, it would generally be inequitable for one spouse to walk away with very limited earning potential after spending years out of the workforce raising the kids, while the other spouse is walking away after years of rising in the ranks and gaining experience in a career. The court tries to level the playing field in these situations so that both parties can leave the marriage in a similar position.
How Is The Amount Of Spousal Support Or Alimony Determined In Virginia?
The court determines the amount of spousal support by looking at the circumstances of the marriage and the factors that led to the dissolution of the marriage. These factors include adultery and other divorce grounds. Virginia Code Section 20-107.1(e) includes a list of factors considered in determining the nature, the amount, and the duration of the spousal support. As far as the circumstances of the marriage, the court looks at the standard of living established during the marriage, the age and physical and mental conditions of the parties, any special circumstances, property interests, and things of that nature.
What Are The Factors That May Determine How Property And Assets Are Divided In A Divorce In Virginia?
Generally speaking, courts in the Hampton Roads area of Virginia, tend to divide things fairly equally. Equitable distribution does not mean equal distribution, but equal distribution does tend to be the starting point. The court will often use the amount of spousal support to level the playing field in situations with discrepancies in income, which makes it easier to divide property, assets, and debts. These are typically divided somewhat equally, unless there is some reason to delineate from that, such as fault grounds. The length of the marriage is often used to determine the duration of the spousal support. Attorneys frequently default to an unwritten rule that calculates the amount of time spousal support should be paid as half of the length of the marriage. Usually, spousal support is not on the table at all until the parties have been married around 10 years or more, but as with everything in family law, there are exceptions and special circumstances where this is not the case and spousal support is awarded in short marriages. There are also situations where permanent spousal support may be appropriate instead.
Is The Date Of Separation Important In A Divorce Case In Virginia?
Absolutely. The date of separation, in fact, can be crucial. First of all, it determines when you can file for the divorce. You can only file after you’ve been separated for one year if there are minor children, or for six months if there are no minor children and you have a signed separation agreement. You cannot file based on the requisite amount of separation until you’ve figured out what your separation date is.
The date of separation can also have an effect on the distribution of pensions, profit-sharing or deferred compensation or retirement plans acquired during the marriage by either party or the classification of other property. Once parties have separated, anything that is accrued after that separation date is generally considered separate property and will not be distributed along with the marital asset, with some exceptions of course.
If the parties bought a home during the marriage and one party decides to keep that home and buy out the other party, the amount of equity in the home is going to be different depending on the date of separation. The reason for this difference is due to the equity that has been accruing up until that date of separation. Most of the time, after the separation, the equity would not be divided anymore and would go to the party who has been paying the mortgage after that date.
With some exceptions, anything earned or accrued after the separation date is generally considered separate and not subject to equitable distribution. If someone is supposed to pay spousal support and they provide payments after the separation date, they also can get credit for those payments. It’s important, therefore, to establish the date of separation and agree on it early on.
There are two ways to establish the date of separation in Virginia. The first way is relatively easy: you tell the other person you want a divorce, they agree, and you leave the home on the date of separation. The second is a little more complicated which is a separation while still living under the same roof. In this case, you would tell the other person you want a divorce and leave the shared bedroom. You have the added requirement of holding yourself out to the world as separated, meaning you can’t do dinner dates, attend events together, share a bed, etc. You must begin to live as separated and should hold yourself out as separated to your friends and family.
At the end of the divorce process, you must have a witness swear under oath that they have reason to know your date of separation, that you have been separated since that date, and that they know you have not reconciled since that date. For this reason, your date of separation cannot be a made-up date that you both chose.
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