If you have experienced a substantial financial change and are now under financial strain, you may be able to seek a spousal support modification to receive more financial support from your ex-spouse or pay less to him or her, depending on your situation. Many people mistakenly believe that the original divorce terms can never be modified, but in certain situations the court will grant modifications to spousal support.
Please be aware that this is not the case if you entered into a written agreement which provided that the terms of spousal support are “non-modifiable” in all circumstances.
You may be able to modify your spousal support arrangement if you suffer an unexpected illness or loss of income. Losing a job, disability, and a change in work hours are some of the most common reasons that divorced spouses seek a spousal support modification. On the other hand, if your ex-spouse experiences a significant salary increase, that could also warrant a change in the amount of support.
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.
In order to be successful in a spousal support modification, it is wise to consult a Northern Virginia divorce attorney before filing. These cases can be complex, and you will benefit from the help of an experienced attorney. ShounBach has been practicing family law and helping individuals in Virginia for over 40 years. We utilize our wealth of knowledge and legal resources to help every one of our clients.
We understand that life after a divorce can be difficult and full of unexpected changes. Through our work ethic and our knowledge of the law, we have been able to provide divorced individuals with some of the highest quality of legal representation available in the state. We work exclusively on family law so that you can receive focused legal attention for your needs, and we are excited about serving you.