Virginia Spousal Support: OMG Spousal Support

Spousal support really is an odd duck here in Virginia.

The basic consideration when determining spousal support is one party’s need versus the other party’s ability to pay.  However, the court must also consider all of the factors under Va. Code § 20-107.1, which include the duration of the marriage; the decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage; and the obligations, needs and financial resources of the parties.  In addition, the court must contend with stray caselaw that may include language favoring one factor over another (e.g., the standard of living established during the marriage).  The court might also have to wrestle with the fact that the legislature came up with a formula for temporary spousal support awards in our juvenile and domestic relations district courts under Va. Code § 16.1-278.17:1, not to mention the fact that such formula is not supposed to apply when the combined gross incomes of the parties exceed $10,000 per month.  Confusing, huh?

Well, it gets even more confusing when one party’s income is so high that the other party begins stretching the meaning of need for spousal support to its breaking point.  And that’s exactly what the Clarke County Circuit Court faced recently when determining how much to award in temporary spousal support in Ellis v. Ellis, CL No. 150003145-00.

In that case, there were the following facts:

– The parties married on June 16, 2003.
– The parties have three kids.
– The parties are healthy.
– The kids are healthy.
– The kids will live primarily with their father while the divorce case is pending.
– The wife does not work.
– She had been a stay-at-home mother throughout the marriage.
– The husband does work.
– He makes $1.8 million per year.
– He has agreed to pay $6,000 per month towards his wife’s three credit cards while their divorce case is pending and an additional $15,000 to help her relocate.

So what’s an appropriate amount of spousal support under these circumstances?  Well, the trial court held that the $6,000 per month wouldn’t cut it, so it obligated the husband to pay an additional $15,000 per month in temporary spousal support.  That is, the court obligated the husband to pay to the wife a total of $21,000 per month in temporary spousal support while their divorce case is pending.  In other words, the court awarded one adult temporary support that’s almost three times the amount of support that our legislature determined would be the presumed correct amount for three children.[1]

So what was the court’s rationale?  Did it actually hold that she needed that kind of money to make ends meet even though she no longer had the kids to care for during the week?   Well, not exactly.  It led with the fact that $15,000 per month in additional spousal support is a mere 10 % of the husband’s monthly gross income.  In other words, this is a drop in the bucket for him, which is true.  It further added that said amount should “adequately provide for [the wife’s] monthly expenses.”  I’d hope so!  Lastly, it noted that it was throwing the husband a bone by declining to order attorney’s fees or expert witness expenses in light of the amount of spousal support awarded.

[1] If the wife had received temporary custody of her three children in lieu of spousal support, her husband’s presumed child support obligation would have been only $7,778 per month ignoring any daycare or insurance coverage costs.  If we generously add in $3,000 per month for daycare, which the wife wouldn’t need in the first place as a stay-at-home mother, she would still be receiving financial support approximately twice the amount that our legislature determined was an appropriate amount of financial support for her three children.