Generally, by statute, both husbands and wives have a mutual duty to support the other party. Virginia does not support the position that only the husband has a duty of support to his wife. Accordingly, the court must consider specific statutory factors in ordering spousal support and maintenance.
Upon filing a suit for divorce, annulment, or affirmation of a marriage, the court may at any time during the pending suit order support. Under Section 20-103(A)(i) and (ii), of the Code of Virginia, 1950, as amended, the court may enter any order “(i) to compel a spouse to pay any sums necessary for the maintenance and support of the petitioning spouse, including an order that the other spouse provide health care coverage for the petitioning spouse, unless it is shown that such coverage cannot be obtained, (ii) to enable such spouse to carry on the suit.”
To determine whether spousal support should be ordered, the court must consider whether any party is barred from receiving support based on marital fault. If marital fault is not a prohibition to support, the court should then consider the needs and abilities of the parties in relation to factors in Section 20-107.1, of the Code of Virginia, 1950, as amended.
The factors the court shall consider under Section 20-107.1 of the Code of Virginia, 1950, as amended are the following:
1. The obligations, needs and financial resources of the parties, including but limited to income from all pension, profit sharing or retirement plans, of whatever nature;
2. The standard of living established during the marriage;
3. The duration of the marriage;
4. The age and physical and mental condition of the parties and any special circumstances of the family;
5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
7. The property interests of the parties, both real and personal, tangible and intangible;
8. The provisions made with regard to the marital property under Section 20-107.3;
9. The earning capacity, including skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
13. Such other factors, including tax consequences to each party, as are necessary to consider the equities between the parties.
Spousal support may be paid as a lump sum or as periodic payments. Furthermore, spousal support may also be paid for a limited or defined duration. Finally, the court can order a reservation of spousal support. However, if the court makes a reservation of support, there is a presumption that the reservation will continue for fifty percent of the length of the marriage.
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