Divorce In Virginia
Part 1
It is a disappointing, but realistic fact of life that almost 55% of all marriages end in divorce. More than one out of every two people who walk down the matrimonial aisle to pledge his or her everlasting love to a spouse, will sooner or later be walking into a lawyer's office to prepare for the inevitable fight associated with a divorce. The following is not intended to be a thorough and all-encompassing treatise on the divorce law of Virginia, but rather, is meant to simply provide the reader with an outline of the most common issus addressed in any divorce situation.
GROUNDS
Virginia recognizes four (4) specific grounds which would support the granting of a divorce. Three (3) such grounds are based upon the "fault" or bad conduct of one spouse, namely, desertion, cruelty and adultery. The fourth ground is commonly referred to as "no fault," and is based upon the husband and wife separating, and living apart from each other for the required period of time. If there are minor children involved, or if there has been no written property settlement agreement, then the period of separation must be one (1) year. However, with no minor children and a written agreement settling all property issues, the required separation period is cut in half to a mere six (6) months.
In most divorce situations, the issue of support is often paramount. This may take the form of spousal support and maintenance (alimony) payable by one spouse to the other. In addition, whenever there are minor children, there will always be an issue of child support. These two forms of support are dealt with differently by the courts, therefore, I have discussed them separately:
SPOUSAL SUPPORT (Alimony)
When two married persons separate and stop living together as husband and wife, the law in Virginia generally requires that the spouse earning the greater amount of income help support the other spouse earning significantly less, or no income. Such spousal support is often determined initially on a pendente lite, or "interim" basis, which will continue until the court conducts a "final" hearing in the case. This "interim" spousal support is based solely on the parties' respective incomes and needs. As a rule of thumb, the courts in Northern Virginia will often calculate "interim" spousal support as one-third (1/3) of the payor spouse's gross monthly income, minus one-half (1/2) of the recipient spouse's gross monthly income. These percentages change slightly (28% payor - 58% recipient) in situations where child support is also being paid.
At the "final" hearing in a divorce case, there are no predetermined percentages for an award of spousal support. Instead, the court will analyze and weigh the evidence presented by the two spouses on more subjective issues, such as the contributions and sacrifices made by one spouse to benefit the family, or to educate the other spouse, or to assist in the advancement of his or her career. Of course, the two most significant factors in the final determination of spousl support remain: (1) the length of the marriage; and (2) the parties' respective earning capacities.
Under Virginia law, a Judge can award spousal support to be paid "permanently," which means until one party dies, or the recipient remarries. Such "permanent" spousal support will always be susceptible of increasing, or decreasing, throughout the years in the event there occurs a material change in one of the parties' financial circumstances, either for the better or for the worse. A Judge also has the ability to award the payment of spousal support for a specific and limited period of time. This "rehabilitative" support is often awarded in marriages of relatively short duration, or to allow the recipient spouse an opportunity to obtain education or training necessary to earn an income sufficient to support himself or herself.
Lastly, under current tax laws and IRS regulations, all spousal support is deductible by the payor spouse from his or her gross taxable incomes, and is treated as taxable income to the recipient spouse.
CHILD SUPPORT
In the Commonwealth of Virginia, both parents owe a duty to financially support any minor child of the marriage, or which they have legally adopted. Several years ago, Virginia took all of the guesswork out of determining the amount of child support owed by one parent to the other by publishing child support "Guidelines." This is a chart found in Code Section 20-108.2, which tells every Judge, attorney and parent in our state exactly how much support must be paid each month for minor children. These "Guidelines" are based on the parents' respective gross monthly incomes (including spousal support), as well as the cost of childcare, health insurance and any "extraordinary" medical expenses associated with a child. The parents are required to share the total amount of child support in the same proportions as their respective incomes. One clear advantge of the "Guidelines" is that it takes virtually all of the guesswork and uncertainty out of the calculation of one parent's monthly child support obligation to the other parent.
Under Virgina law, child support must be paid for any child who is less than 18 years old and not otherwise "emancipated" (i.e., joining the military or getting married). However, if a child turns 18 and is still a full-time high school student, as is frequently the case, then support must continue to be paid for that child until he or she either graduates from high school or reaches age 19, whichever occurs first.
The payment of child support is not considered "income" by the IRS and, therefore, is not deductible by the payor spouse, nor is it taxable to the recipient spouse.
(To be continued . . . The next Newsletter will discuss the wonderful world of Equitable Distribution in Virginia).