Under Virginia law, spousal support may be modified upon a material change in circumstances that warrants modification. The Virginia Code does not define the phrase “material change in circumstances,” but courts have determined that a material change may be anything that affects the need of the party receiving support or the ability of the other party to pay support. Additionally, support may be terminated if either party dies, or if the party receiving support remarries or cohabits with another person in a relationship analogous to marriage for a period of one year, unless termination would be “unconscionable.” In addition, parties may deviate from the law by agreement. For example, they can agree that spousal support would not be modifiable or terminable, or set certain conditions regarding modification or termination of support. Due to complicated requirements for such deviations to be enforceable, it is important to consult with an attorney before entering into an agreement.
One circumstance that frequently leads to an interest in modification is a support payor’s retirement from employment. Importantly, however, modification in the case of a payor’s retirement is never guaranteed.
Virginia law sets a very high standard for a payor to successfully modify spousal support. So long as the payor has assets – even illiquid assets, such as real property – the court may find that the payor’s ability to pay support is unchanged, even if the payor’s income has decreased due to retirement. Furthermore, the recipient of spousal support is not required to invade his or her separate assets to offset a need for support. As a result, retired support payors who have saved carefully after a divorce often encounter challenges when seeking to modify support.
Similar issues can sometimes arise in cases of spousal support termination. Even though a party may be cohabiting with someone, Virginia law does not require a termination of support if such termination would be unconscionable – that is, if it would be unnecessarily harsh under the circumstances. Again, the law does not define what specific circumstances may be unconscionable; however, if a support recipient needs support and would be destitute without it, despite cohabitation, a court could find that such a circumstance is unconscionable.
While not all cases can be settled out of court, if a settlement can occur, it is wise to consult with an attorney before any settlement agreement is executed to avoid future problems and understand how support may affect your long-term financial outlook. Significant risks and problems regarding spousal support modification and termination may be avoided or mitigated by informed decision-making, thoughtful negotiation and well-drafted settlement terms.