Most folks approaching a divorce or marital separation for the first time are generally aware that there may be support obligations from one spouse to the other, particularly when children are involved. But often people are not fully informed of the important differences between “spousal support”, or what used to be called “alimony”, and “child support”. The differences between the two types of support are crucial in a divorce or separation, and understanding the differences can benefit a client in approaching considerations of both litigation and settlement of these issues.
“Alimony” is a term that was used in the past to describe a payment that a husband made to his wife after a divorce. Years ago, it was unheard of, and in fact no law provided for, the payment of support from a wife to a husband. Nowadays, support can be paid from one spouse to another independent of gender, and so this type of payment is referred to as “spousal support”.
Spousal support is intended to provide for the maintenance of one spouse after the parties have separated. A divorce does not have to be entered for spousal support to be paid. The law provides for spousal support petitions to be entertained by the courts when the spouses have separated, and it can be paid regardless of whether there were children born of the marriage. The courts can enter temporary or “pendente lite” support awards (which are in place during the pendency of a case), or they can enter final spousal support awards upon the conclusion of the case. Spousal support may be awarded upon a petition for support filed in the juvenile and domestic relations district court, upon a complaint for divorce in the circuit court, or upon a complaint in circuit court for “separate maintenance.”
Spousal support may be ordered by the court to be payable as a “lump sum” award or in periodic payments. It may be of a limited duration or an “indefinite” award that terminates only upon certain events (statutory termination would occur upon death, remarriage, or “cohabitation” by the payee in a relationship analogous to marriage for one year or more). The amount and duration of the spousal support award is left to the discretion of the trial court. The law provides that the court is required to give consideration to a number of “factors” in making these determinations, including but not limited to the needs, obligations, and resources of the parties, their age and health, the duration of the marriage, the factors that contributed to the marital dissolution, and their respective earning capacities. The factors are set forth in Section 20-107.1(E) of the Code of Virginia. However, if the parties reach a written agreement on spousal support and file it with the court, the court has no such “discretion” and cannot enter an order inconsistent with the agreement. Spousal support is taxable to the recipient and tax deductible to the payor.
The court has many more contraints in setting child support. The court is required to consider the presumptive guidelines set forth in Section 20-108.2 of the Code, which set an amount of basic child support based on the number of children and the gross monthly income of the parties. The costs of providing medical insurance and the cost of work related child care are also included in the calculation. The court is required to impose the “presumptive” number unless it finds evidence to “deviate” from the presumptive figure, which deviation can be based on a number of considerations set forth in Section 20-108.1 of the Code. The parties may agree to a certain amount of child support, but the court is always required to review the guidelines, and is not required to accept the parties’ agreement. The duration of child support is set by statute, which provides that it continues until the child turns 18 unless certain conditions exist, e.g., if the child is still in school, living in the home of the recipient parent, and is not self supporting. In those cases, child support will continue until the child turns 19 or graduates, whichever first occurs. Child support is not taxable to the recipient nor deductible to the payor.
The manner in which spousal and child support can be modified are also different. Child support is always modifiable by the court in the event of a material change of circumstances occurring since the last order. Spousal support may or may not be modified, depending on the circumstances. If the spousal support was set by written agreement filed with the court, it may only be modified as the agreement provides. If the court sets the spousal support after a litigated hearing, it maintains the authority to modify the support upon a showing of a material change of circumstance.
Since spousal support is considered income to the recipient and is deductible from the income of the payor, it must be addressed before child support where both types of support are at issue. This is because the child support is based on the gross incomes of the parties, and spousal support paid from one spouse to the other has an effect on those respective income figures.
Understanding the many distinctions between spousal support and child support is critical for both attorney and client when facing either litigation or settlement of these important obligations.
Rinehart, Butler, Hodge & Moss