Summary of Virginia Alimony Law

Alimony (also referred to as spousal support) is the court-ordered financial support of one spouse by the other spouse as part of a legal separation or a divorce.

In Virginia, alimony is not mandatory in a divorce or legal separation. A court may decide to grant alimony “as it deems reasonable” if it finds that alimony is necessary. Or it can be determined in a marital settlement agreement by the spouses.

Factors Affecting the Amount and Duration of Alimony in Virginia

A court may consider a variety of factors when determining whether to grant alimony and in determining the amount, nature, and duration of alimony. These factors include (but are not limited to):

• • The earning capacity, obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature,
• • The education and training of the parties and the ability and opportunity of the parties to secure such education and training,
• • The standard of living established during the marriage,
• • The duration of the marriage,
• • The age and physical and mental condition of the parties,
• • The contributions, monetary and non monetary, of each party to the well-being of the family,
• • The property interest of the parties, both real and personal, tangible and intangible,
• • The provisions made with regard to the marital property, and
• • Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

Modifying Orders for Spousal Support

A court may increase or decrease the amount of court-ordered spousal support if either party can show “substantially changed circumstances”

If spousal support is set forth by a property settlement agreement, rather than by court order, the amount of support generally cannot be modified unless there is language in the settlement agreement allowing for such modification.

When do Alimony Payments End?

Alimony may only last for period of time specified in a court order. Or it may last for an indefinite period of time. In general, alimony that has been ordered for an indefinite period of time automatically terminates when either party dies or when the recipient remarries. A spouse who is paying spousal support may generally also petition a court to terminate spousal support if the recipient spouse has cohabitated with another in a relationship like that of a marriage for a year or more.

Tax Consequences of Alimony

It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.

However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:

• (1) The payment is be a cash payment (such as a check or money order)
• (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
• (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
• (4) The payer and payee are not members of the same household at the time payments are made
• (5) There is no liability to make payments after the death of the recipient spouse