For over seventy years, federal tax law has allowed payors of spousal support to deduct every single dollar of payments from their gross income and has required recipients to declare those payments received as income. The clear policy reason was that payors should not be taxed on income that they received but were legally compelled to give away, and recipients should not receive income completely tax-free. By shifting the tax burden from the higher-earning spouse to the lower-earning spouse, because of the progressive nature of tax brackets, it also usually kept more money in the parties' hands, as opposed to being taxed by the state and federal governments. As a practical matter, this scheme has made it easier for payor spouse to agree to pay support, knowing precisely what he or she would be giving away.
A party losing their employment, whether voluntarily or involuntarily, can have earth-shattering ramifications for a divorce at any stage, whether during the divorce process or after a divorce decree has already been entered. This is particularly true where spousal support or child support is being paid by one party to the other. Typically, a loss of employment income can be a trigger for a reduction of those support amounts, as the payor will claim they do not have sufficient income to pay support at the same level. Where the loss of employment is involuntary, such a request may well be granted. However, the payor receiving a severance from their employer could change that outcome in several ways.
Individuals receiving spousal support often ask themselves, "what happens to my support payments if my ex-spouse dies?" Beginning July 1, 2017, Virginia law now allows the Court to order the paying ex-spouse to maintain a life insurance policy for the benefit of the party receiving support in order to secure those spousal support payments in the event of death.
When a party paying child support or spousal support dies, those payments end with the payor's death. Thus, if you are receiving support, it is quite legitimate to consider what might happen if the payor dies before the term of support would otherwise naturally end. This may be especially important to consider where your children have special financial needs, or if you agreed to receive a greater amount of spousal or child support in lieu of other money or property. Alternatively, if you are paying child support and the other parent passes away, such that you become your child(ren) primary custodian, your living expenses could increase dramatically. Fortunately, Virginia law provides a "Plan B" to protect parties in those catastrophic circumstances.
When one spouse is either voluntarily unemployed, or is under-employed, Virginia law does allow the other spouse to take the position that income should properly be imputed to such spouse when addressing a determination of spouse and/or child support. Stated differently, Virginia law will generally not allow a spouse to refrain from working at a paying job, or working at something less than his/her earning capacity; and thereby cause the other spouse to pay an increased amount of support.
We often receive questions from individuals who have recently lost their jobs asking whether they still have to pay their court ordered child and/or spousal support. The answer is a resounding YES!
If the two parties are able to reach an agreement with respect to the amount of spousal support one will pay to the other, then they are also allowed to agree between themselves on whether such amount of spousal support will be forever "locked in cement," i.e., non-modifiable; or, in the alternative, whether the amount will be subject to change in the future. If you are the spouse receiving the support, then it may be of benefit to have the amount of spousal support characterized as "non-modifiable," so that it will never change; and, you are more easily able to budget your monthly income. The down-side, of course, is that your spousal support figure will never increase either, even if your former-spouse's income should skyrocket.
In Virginia, if the divorce is based on one spouse's adulterous behavior, the cheating spouse is normally precluded from receiving spousal support by statute.
No spouse enjoys being required to pay monthly spousal support to the other spouse. The inevitable claim is that the recipient spouse is either voluntarily unemployed or under-employed. In other words, the recipient spouse is intentionally not getting a job, or not earning to his/her capability, thereby requiring the employed spouse to pay an unreasonably large amount of support.
Virginia law expressly authorizes a Court to increase or decrease the amount of support, whether child support and/or spousal support, involved in a divorce situation.