By Sonja N. Aoun, Esq.
A few months ago, a court in Massachusetts made the headlines of nearly every major news publication when it ordered a man to pay spousal support to the woman from whom he had been divorced for more than twenty years, even though they had each agreed to waive the right to seek such support.
Could something like this happen in Virginia?
Fortunately, in Virginia, a waiver of spousal support (sometimes called “alimony”) is permanent. Fortunately, that is, in terms of ruling out surprises like the one in this Massachusetts case. However, women shouldn’t be too quick to throw away their rights to receive spousal support.
Virginia law does allow a way to go back to court at a later time for support, or to increase the amount of a spousal support award. Only agreements or court orders written with the utmost care, however, generally preserve this option for former spouses.
Spousal support decisions can be life-altering decisions. Many women today, especially working women, are quick to dismiss the idea of spousal support. We sometimes tell our clients that even if they are one hundred percent certain that they do not want support they at least must listen to what we have to say about it.
The woman who sought support in the Massachusetts case is a good example. She did so because she had been diagnosed with cancer and filed for bankruptcy. Most women who do not want spousal support haven’t thought beyond their current economic situations or the desire to be free of any ties to a former spouse. But statistically speaking, disability, disease and job loss will be experienced by many of these women. Our mission is to educate spouses so they can plan appropriately, having considered all the options and rights afforded to them by Virginia law, including reserving the right to request support, even if they don’t want to seek it at the outset of their divorce.
Support can be paid during the time between separation and divorce, and may be paid for a relatively short period of time or for the rest of a woman’s life, depending on the circumstances. Spousal support is determined by looking at a variety of factors such as education, work experience, age, health, and duration of the marriage.
Courts may also consider whether someone is voluntarily unemployed or underemployed when determining a spousal support award. Vocational experts are often used to help assess a spouse’s earning capacity to assist the court in properly imputing income and determining the appropriate support amount. When someone is self-employed, hiding assets or income, or under-reporting income, these cases require even more sophisticated analysis and advice.
Women who are re-entering the work force or wondering whether they will need to re-enter the work force will benefit entry from time spent investigating their options well before the divorced is finalized. A woman facing divorce needs to find out what she could expect to earn upon re-entry, and whether she will require additional education or skills training to find work in her chosen field.
In addition to the decision about whether to request support, a good attorney will discuss with you the need to evaluate the potential tax consequences of a support award. Properly prepared agreements account for such consequences and include safeguards against bankruptcy by the paying spouse.
Finally, a competent divorce attorney will review possible actions that could modify or terminate support. Examples of actions that can cause a spouse to lose support are adultery, remarriage, or living together with a significant other such as a boyfriend, girlfriend, or fiancée (even in a same-sex partnership). Retirement is one of the most common reasons spouses petition to reduce their support obligations.
When facing divorce or permanent separation, it is critical that each person look beyond their immediate needs for spousal support and contemplate the possibilities that may lie ahead. Protections put in place now may be more important that you could have ever imagined. Once these protections are waived, however, they are gone forever.
Sonja Aoun received her law degree from Georgetown University Law Center. She also attended Georgetown University as an undergraduate, where she received her Bachelor of Sciences in Languages, cum laude. She has practiced law since 2001, focusing her practice almost exclusively on family law. In 2007 she opened her current practice, Aoun & Stanford, P.C., with Jennifer Stanford. She shares the firm’s goal of providing outstanding service and legal representation. She is passionate about educating her clients and contributes frequently to a blog dedicated to divorce, custody, and family law issues in Virginia (www.virginiadivorceandcustodyblog.com).
Ms. Aoun represents individuals in matters such as divorce, child custody, visitation, spousal and child support, enforcement of court orders, division of property, military divorces, relocation, protective orders, and annulments. She believes in working with experts, such as custody evaluators, mental health professionals, forensic accountants, vocational experts, or even coaches. She is a family law mediator and encourages the use of alternate dispute resolution when appropriate.
Two of Ms. Aoun’s cases have appeared on the Virginia Lawyers Weekly list of the most important cases of the year, winning an unusual attorney’s fee motion for her client in one matter, and successfully defending her client against a contempt of court action in a visitation and custody matter.
She lives in Fairfax, Virginia with her husband and two young children. She is originally from Minnesota and listens nostalgically to A Prairie Home Companion whenever it’s quiet enough at home to do so.