When can you modify spousal support in Virginia? The case of Cid v. Cid, Record No. 1952-11-4 (Va. Ct. Appeals 2012) provides a nice illustration.
On November 26, 2007, the husband was ordered to pay $1,500 per month in permanent spousal support pursuant to divorce decree. On December 13, 2010, the husband petitioned to modify spousal support on the basis that his gross income had decreased from $159,000 per year to $43,000 per year and that his wife’s gross income had increased from approximately $73,000 per year to $106,000 per year. On its face, this looked like an excellent case for modification downward from $1,500 per month given the husband’s severely reduced inability to pay and her moderately reduced need for support.
It turns out that the husband was doing just fine despite the reduction in his gross salary. He still made an additional $24,000 per year in social security benefits. He also had the potential for an additional $24,000 per year in retirement annuities. And he also had a bank account with over $200,000 in deposit, which theoretically could be invested in a manner that would pay him at least $4,000 per year at a 2 % interest rate. As such, his gross income was really only reduced from $159,000 per year to approximately $95,000 per year. Lastly, and probably most damning, his income and expense worksheet showed him netting somewhere between $1,490 per month and $4,792 per month.[1] As a result, the husband could not even dispute that he had the ability to pay spousal support at trial.
Consequently, the Fairfax County Circuit Court denied his request because he had failed to prove a material change in his ability to pay spousal support. On appeal, the Virginia Court of Appeals affirmed the trial court’s decision and restated the rule of law recently handed down in Driscoll v. Hunter, 59 Va. App. 22 (2011):
A material change in circumstances, by itself, does not require the alteration of a spousal support award. Instead, the party seeking modification must show, in addition to a material change in circumstances, that the change “warrants a modification of support. [Citations Omitted]. A modification of support is warranted when it “bear[s] upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay.” [Citations Omitted]. Therefore, even if the trial court had committed error in declining to hold that husband’s retirement constituted a material change in circumstances, that alone would not provide a basis for the trial court to alter the spousal support obligation. Id. at 33, 716 S.E.2d at 481-82 (emphasis added).
So what’s the take home point to this case? Don’t be someone who can’t see the forest (i.e., everyone’s total financial picture) for the trees (i.e., mere changes in work income) when it comes to modifying spousal support in Virginia.
[1] Unfortunately, the opinion is less than clear on this issue. Indeed, it merely states that his gross monthly income was now $11,792 and that his monthly expenses were now approximately $7,000. The opinion does not state whether his monthly expenses included typical deductions from his pay, including taxes, retirement contributions, etc. If it did not, then his gross monthly income would be reduced to approximately $8,490 per month at a 28 % income tax rate. If it did, then he netted about $4,792 per month (i.e., more than enough to keep paying spousal support at $1,500 per month).