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When can a Virginia court modify a spousal support award?

These are financially challenging times for many people affected by our serious economic downturn. People are losing jobs or working reduced hours, businesses are closing or struggling, and illness is impacting families. For these reasons and more, many Virginians are having trouble making ends meet.

For someone with the obligation to pay spousal support - also known as alimony - a drop in income may make full payment impossible, or if they make full payments, there may not be enough to pay other bills and meet expenses. On the other hand, a person who receives spousal support may unexpectedly face financial hardship and require more support.

Virginia law on spousal support modification

The Virginia alimony modification statute allows either ex-spouse to petition the court to increase, decrease or terminate a spousal support award's amount or duration, if there has been a "material change in circumstances" and if those circumstances make modification "proper." The change in circumstances must not have been "reasonably in the contemplation of the parties" at the time of the divorce, or an event expected to occur that was "significant" in setting the alimony terms did not happen through no fault of the ex-spouse asking for modification.

If the original award is for a defined, limited time duration, the petitioner must file the modification request before the award expires.

In deciding the request, the judge can consider anything relevant, but must weigh several factors listed in statute. In the situation we contemplate here where someone has lost resources or income because of the current national upheaval or infectious disease, some of the listed factors that are likely relevant to this modification request include:

  • Each parties' debts, needs and resources
  • Each parties' health
  • Special family circumstances
  • Each parties' real estate, personal property, investments and other property interests
  • The nature of the division of marital property in the divorce
  • Earning capacities and current job opportunities
  • Feasibility of getting education, training or work that will provide skills to enhance earning capacity
  • Marital decisions regarding parenting and career and their impact on earning potential, including how long either party has been out of the work force
  • Contribution of either party during marriage to the earning capacity and career of the other
  • Amount and duration of alimony already paid

Virginia law also requires that the judge look at each parties' assets from the beginning of the alimony award through the modification hearing and whether the property generated income.

Complex legal issues

Some complicated legal issues may impact the availability of spousal support modification to a divorced individual. Any valid agreement, stipulation or contract between the parties -- like a prenuptial or postnuptial agreement or a marital settlement agreement - in which they agree that alimony will not be modifiable would normally be enforceable.

Complex legal issues arise regarding such agreements between the parties. Whether the agreement's provisions impact the availability of modification may depend on when it was filed with the court, the language of the agreement and when it was signed, since the governing statute that describes the applicable standard has been amended over time. 

 

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