The 2018 Amendment to Virginia Code § 20-109

Provides No Assistance in Answering the Question

Long term marriages often result in spousal support awards that continue indefinitely.  Long term marriages also mean that the spouses are closer to retirement age.  Before retiring, the spouse paying support usually wants to know that they can afford to retire, which means that they want to determine before they retire whether they will be required to continue paying spousal support, and if so, how much.  For reasons discussed below, it has been impossible for a family law practitioner to advise a client.  During the 2018 Session, the Virginia General Assembly amended the statute governing modification of spousal support, Virginia Code § 20-109. Unfortunately, the amendment is of no help in answering the question.

The Basics of Modification of Spousal Support

The first question is whether the spousal support award can be modified by the court.  If the spousal support was determined by agreement of the parties, the spousal support award is not modifiable unless the agreement expressly says that it is modifiable.  If the award was made by the court it is modifiable.

To request modification, either party may assert that there has been a material change in circumstances since the date of the award AND that the change in circumstances warrants a change in the ordered amount of support.  A material change that warrants modification of support is one that affects the financial needs of the receiving spouse or that affects the ability of the paying spouse to pay. However, a material change that reduces the ability of the payor spouse to pay support cannot be due to that spouse’s voluntary act. For example, a payor who loses his job because he was insubordinate to his superior cannot use the resulting reduction in income to justify a reduction in his support obligation.

A spouse seeking support or continued support is not required to deplete their assets to qualify for support or to relieve the other spouse of the obligation of support. However, in recent case law, the contrary assertion has been held not true – while the receiving spouse may not be required to exhaust their assets to support themselves, the paying spouse may be required to expend assets (as opposed to earnings or income) to pay spousal support.

Application of the Basics to Retirement of the Paying Spouse

When the basic statutory and case law regarding modification of spousal support has been applied by trial courts to situations where the paying spouse has retired, the result has been substantial obstacles to relief for the retiring spouse. Trial courts have held that the paying spouse has voluntarily retired and therefore refused to even consider whether changes in incomes warranted a change in spousal support. Of courts that have considered modification due to retirement, some have refused to reduce the paying spouse’s obligation, holding that the paying spouse can pay from “other sources.” In other words, the court refused to lower or terminate the support obligation because the payor spouse could make payments from assets rather than from income.

The 2018 Amendment to Va. Code § 20-109

Effective July 1, 2018, Virginia Code section 20-109 provides that “the payor spouse’s attainment of full retirement age shall be considered a material change in circumstances.” The statute defines full retirement age as the age at which the payor spouse is eligible to receive full retirement benefits under the Social Security Act, which differs based on the year in which the payor spouse was born.

The 2018 Amendment also adds new Subsection F which sets forth six factors that the court must consider (in addition to the “normal” factors set forth in Va. Code § 20-107.1) when considering a request for modification of spousal support based on retirement of the payor spouse.

The required considerations are:

1. Whether retirement was contemplated by the court and specifically considered by the court when the spousal support was awarded;
2. Whether the retirement is mandatory or voluntary, and the terms and conditions related to such retirement;
3. Whether the retirement would result in a change in the income of ether the payor or the payee spouse;
4. The age and health of the parties;
5. The duration and amount of spousal support already paid; and,
6. The assets or property interest of each of the parties during the period from the date of the support order and up to the date of the hearing on modification or termination.

The Effect of the Amendment

Only with time will we learn how courts will apply the amendment to spousal support cases.  As with many statutory amendments, there are more questions than answers from the amendment itself.  What is clear is that only retirement at full retirement age is deemed to be a material change in circumstances. What about mandatory retirement prior to full retirement age?  Is that a material change in circumstances?

The court is required to consider whether the retirement, even at full retirement age, is mandatory or voluntary? Can court still refuse to modify spousal support because the reduction of the income of the payor spouse at full retirement age is a voluntary reduction?

What of the required consideration of “the duration and amount of spousal support already paid”? If everything else is equal, is the payor spouse who was divorce 20 years prior to retirement age more likely to obtain a reduction in the amount of spousal support than the payor spouse who was divorce five years prior to retirement? Is there a “lifetime maximum” of spousal support?

Of what import is the last factor listed, the assets and property interest of the parties from the date of the support order to the date of the hearing? The amendment does not change the case law holding that the spouse who wants to continue support cannot be required to use assets to support themselves or that the spouse who has to pay support may be require to use assets to do so. The court is required to consider the assets and property interests from the date of the support order to the hearing, but does not require the court to consider the financial decisions made by the parties for the same time period. What of the payor spouse who is a spendthrift and saves diligently for retirement while the payee spouse is much less frugal and spends above his or her means such that at the final hearing, the payor spouse has substantially more assets than the payee spouse? Will the payor spouse be required to use the assets acquired since the support order was made to continue to pay support to the wasteful payee spouse? What if both parties save and acquire substantial assets during the interim period? The payee spouse cannot be required to use their assets to support themselves but the payor spouse can be required to use assets to pay support.

Conclusion

The 2018 Amendment to Va. Code  § 20-109 was a step in the right direction, but provides no real solution or guidance for practitioners or retiring former spouses. The General Assembly needs to weigh in and either make assets off limits for spousal support purposes except to the extent that they generate income or make expending assets for support a consideration for both former spouses. Otherwise, the playing field remains unlevel when the payor spouse retires, whether it is at full retirement age or earlier, regardless of whether the retirement is mandatory or voluntary.