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There can be two phases of spousal support. There is the pendente lite, or pending litigation, stage of spousal support and the post-divorce stage.
Pendente lite spousal support is established using a guideline support formula in all juvenile and domestic relations district courts, and in some circuit courts, e.g. Fairfax County Circuit Court. In other circuit courts, temporary support may be established with reference to a guideline amount and abbreviated hearing concerning income and expenses. Other circuit courts will want a full hearing to consider the entire family financial picture.
Post-divorce spousal support is decided upon the factors listed in Va. Code § 20-107.1. The circuit court will consider the reason for divorce, the assets and liabilities of each party, family decisions concerning careers, employment, and child rearing. In sum, spousal support is analyzed based upon need and ability to pay. “Need” for a spousal support recipient occurs when expenses based upon the marital lifestyle exceed the income the recipient could be reasonably expected to earn.
Vocational rehabilitation experts frequently provide their expertise at this phase to testify regarding a recipient’s employment prospects based upon the recipient’s skills, training, education, aptitude, and interests, and upon the employment outlook for likely positions for that recipient.
If there is no “need,” that is one’s income is sufficient to meet one’s expenses, then there is, in most cases, no award of spousal support. Where need is established, we then turn to consider whether the prospective payor has the “ability to pay.” “Ability to pay” is the complement to “need.” We go through the same consideration of income if fully employed and expenses based upon the marital lifestyle. Where income exceeds expenses, there is ability to pay.
In a perfect world, the payor’s ability to pay exceeds the recipient’s need. In that instance, there is sufficient income for both sides to fully meet their expenses to maintain a familiar standard living. The contest in the real world is how to run two households on the same income that one household fully consumed.
Teresa S. Cole
Michael C. Miller
Virginia C. Haizlip
Amanda Stone Swart
Camille J. DiIlio
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