The determination of child support and spousal support can be a complex and stressful process. While calculators exist, there are many variables that can yield a figure significantly different from what you might expect. You will want an experienced attorney to advise you and seek to obtain the best possible result for you.
Each state has its own laws and guidelines on how child support is determined. Sometimes courts rely on a mathematical formula to calculate specific child support payments. The formula is used differently in every case, depending on the individual custody and visitation schedule. Usually, the parent that has primary custody (or the majority of the time with the children) is the parent who receives child support payments. In other words, who makes the payment will depend on the arrangement of child custody.en the two parents.
While some states use a guideline or formula to set child support, the courts have the power to decrease or increase support as they see fit when taking into account the unique circumstances of the family. In such cases, the judge considers a variety of factors to determine whether to deviate from the child support guidelines.
Child support can almost always be modified up until the date the child is emancipated. The courts recognize that a material change in circumstance can make it appropriate to modify the original child support amount. Courts may modify child support in various situations, including where the child is no longer in daycare or either parent’s income has undergone a drastic change.
Additional Things To Consider
Child support is always modifiable by a court upon a material change in financial circumstances. Generally this can include significant changes in income, increases in health care and/or child care costs, changes in the custody arrangement, the birth of other children (provided you have another material changes at the same time), the emancipation of children and changes in spousal support payments.
A court order directing the payment of child support is enforceable by holding a parent in violation in contempt of court. A parent found in contempt can be ordered to pay support, attorneys’ fees and even go to jail in some cases.
The Virginia Supreme Court provides a standard worksheet to calculate child support. However, you should always consult with an attorney about child support as most will have standard computer software to accurately calculate the guidelines and review with you all your options.
Courts usually determine spousal support differently than child support. Instead of using a formula or guideline, spousal support is often determined based on the circumstances of the parties in the case. Spousal support cases can be complex, and a demonstrated disparity in income generally has to exist before most judges will award support at all. In other words, there is no guarantee that the court will award support in every case. Spousal support can be awarded on a temporary or a permanent basis. It can also be awarded for a set duration of months or years or in a lump sum. Having an experienced attorney who has litigated spousal support cases is essential to obtaining the best outcome possible.
If the court decides a spouse is entitled to receive support, it will examine the parties’ monetary resources, their income, and their financial needs to determine the amount of the support. In divorce cases, courts often take into consideration the reasons for the breakdown of the marriage, such as adultery or domestic violence.
Like child support, spousal support is usually modifiable by the court unless the parties agree otherwise in a contract of some kind.
Spousal Support Guidelines
Your state’s law has spousal support guidelines, a statewide formula for calculating a presumptive amount of alimony. In fact, there are also some local guidelines that are applicable in divorce cases, but many courts are free to ignore them completely.
The main purpose of those local guidelines was to establish the so-called “pendente lite” spousal support, which is alimony to be paid until the divorce is finalized. Although these local alimony guidelines are not binding on circuit courts, some courts consider these rules as a starting point in determining a proper spousal support amount.
So, if you are getting divorced, speak with a family law attorney to find out which local guidelines are applicable in our local courts. In some cases, courts may award lump sum spousal support (or, in other words, an alimony award made in one payment).
However, the pendente lite formula does not take into account the new changes in the U.S. federal tax law since the Tax Cuts and Jobs Act of 2017 took effect. Therefore, if the pendente lite calculation is used in your divorce case, you may want to consider how taxes might affect the alimony payments in your particular case.
When it comes to determining alimony, there are many things to know about spousal support, including types of support, situations in which support is not awarded, and which factors terminate alimony payments, among others.
The child support guidelines are calculated taking into consideration a custodial parent’s child care expenses. However, the amount for child care cannot exceed the cost of quality care from a license source (i.e. a nanny or au pair). It is important to note that where the non-custodial parent is available to provide child care the court will consider this fact in determining how to calculate the guidelines. Child support payments also take into consideration the costs for health insurance and dental insurance coverage directly allocable to the child or children over and above the costs for a family or individual plan.
The child support guidelines will also take into consideration a child or children of either parent from another relationship unless the court finds that this would be inappropriate in some way. If the court takes the other child or children into consideration, the guideline calculation can be greatly affected. Our experienced Leesburg child custody attorneys can help.
The court will consider the custodial arrangement between the parents in calculating the guideline support amount.
Determining Factors in Spousal Support
State law will determine the amount of support that either spouse is entitled to. If the court decides a spouse is entitled to receive support, some of the factors it will rely on include:
- Standard of living establishing during the course of the marriage;
- How long the marriage lasted;
- Contributions, both financial and non-financial, of each party toward the family’s well-being;
- Needs, obligations, and resources of each party, which includes, but is not limited to, the income from all profit sharing, retirement, or pension plans;
- Each party’s earning capacity and present employment opportunities;
- Both parties’ interests, including real and personal, tangible and intangible;
- The extent that either party contributed to education, training, profession, etc. of the other party;
- Decisions and agreements made during the marriage on parenting arrangements, career, education, and what effect they have on present and future earning potential;
- What opportunities exist and the ability of a party to obtain the necessary education, training, and employment to learn the skills necessary to increase their earning ability; and
- Any other factors, like tax consequences for each party and any other important factors that may have contributed to the demise of the marriages.
If the court makes an award, the judge can choose that it be made on a temporary basis, a permanent basis, or even a combination of both. It can be in the form of periodic payments or a lump sum.
Modifying or Terminating Spousal Support Payments
Once your final divorce order is signed, you might assume that you won’t have any further ties with your ex. However, even in the absence of having children together, an award of spousal support can bind spouses together long after the divorce is finalized. And, as time passes, circumstances can change that may lead to one party wanting to go back and have the spousal support award modified.
Typically, the person who wants to modify the award is the spouse that was ordered to pay alimony. A material change in circumstances, like the loss of their job or a major illness, is the reason that the modification is being requested.
Alimony Awards that are Silent on Modification
Prior to the new law, in a divorce decree or separation agreement that had no specific wording regarding modification, the award was permanent and was not eligible for modification. Unfortunately, many couples had signed alimony agreements assuming that it could be modified at a later point in time only to discover that it couldn’t since the agreement did not address the subject directly.
Now, if a couple signs a divorce settlement agreement, some state laws may require there be specific language included if the spousal support cannot be modified at any point in time. This means that if there is no language included about whether or not it can be modified, the court will now assume it can be modified.
Modifying Alimony Due to Retirement
The new law also allows courts to consider retirement as a qualifying material change to modify an alimony award. The court is required to look at a variety of factors, including how retirement affects both parties’ incomes, the health and age of both parties, and what assets and property each has.
Modifying Alimony with No End Date versus Defined Duration
When modifying alimony in cases with a defined duration, the overall length of support cannot be extended. The court can opt to decrease, increase, or terminate alimony. One side needs to prove a material change in circumstances happened that neither party anticipated when alimony was first awarded, or an event that the court anticipated would happen did not end up occurring, which was due to no fault of either person.
Modifying spousal support awards that are permanent can be more complex. The statute says the court has authority to decrease, increase, or terminate alimony if the “circumstances make it proper.” This means there is no requirement for a specific event to happen before you can request a modification. This may sound more desirable, but it means the judge has more discretion, which may or may not work in your favor.
Permanent Spousal Support
Permanent alimony is not truly permanent in that you will receive it forever, however it can last the rest of your life if not sooner modified or terminated. There are some conditions that are attached to permanent spousal support that would cause the support to end. These include:
- Recipient ex-spouse remarries
- Either ex-spouse passes away
- Recipient ex-spouse lives with someone in a romantic relationship for a year or more (not a roommate situation)
Lump Sum Spousal Support
In some cases, there may be a lump sum alimony award. This can benefit both parties as the payment can help the recipient get on their feet quickly and the other party doesn’t have a monthly payment to deal with. Sometimes they may negotiate the payment down by doing the lump sum. For example, maybe the award is $75,000 over the term of the award but it can be negotiated to an up-front payment of $65,000 instead.
Periodic Spousal Support / Defined Duration Support
Alimony can be for a specified amount of time as well. A common amount is for half the length of marriage, especially for marriages that lasted less than 20 years. There is no set rule for half the marriage length, but that is a common amount some couples agree on. Periodic payments can be paid monthly or on whatever term you agree to (weekly, annually, etc.). The amount can remain the same or vary either up or down at some point.
Rehabilitative Spousal Support
Another option for spousal support is to set it up to help reach a specific goal. Perhaps one spouse didn’t finish college because they dropped out to get married. Now that the marriage is breaking up, the spouse wants to go back and finish, which can also increase their earning potential. Perhaps the spousal support award helps the recipient get back on their feet while allowing them to finish their college degree. This type of support is often the easiest to negotiate because the recipient is going back to school which will help him or her increase their earning potential and there would be less of a need for spousal support.
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