When you have been married for a lengthy time, in Virginia the Courts have the ability to award permanent spousal support. Permanent spousal support terminates only upon the remarriage of the spouse receiving support, the death of the spouse paying support, specific terms in your Property Settlement Agreement, or a material change in circumstances.
Retirement is considered a material change in circumstances that triggers a review of spousal support. However, there is the second part of this clause that must also be examined. Spousal Support can be modified upon a material change in circumstances that warrants a modification of support, or one the effects the paying spouse’s ability to pay.
When the Court analyzes your ability to continue paying spousal support, the Court looks at your income from all sources, including your retirement income. So, if you are receiving roughly the same amount per month in income after your retirement, as you do before you retire, the Court is not going to modify your spousal support.
Now, some people feel this is an unfair way to analyze income. First of all, retirement accounts were divided during the divorce, why should you have to continue to pay out of an already divided account? Second, you have worked really hard to increase your retirement accounts, why should you have to continue to pay when your spouse didn’t do anything to contribute to the accounts and didn’t build up his/her own accounts.
Unfortunately, the Courts have stated that “a modification of support is warranted when it ‘bear[s] upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay.’” Driscoll v. Hunter, 59 Va. App. 22, 716 S.E.2d 477 (2011). If you can continue to pay for support, even with retirement funds, then you may not get a modification of support.
However, you when you retire, you should still have the Court review spousal support. Other changes in circumstances may apply: your ex-spouse may be earning more money at their job; or, if your ex-spouse is of retirement age, he/she may be earning a retirement income as well, which increases their monthly income and can decrease your spousal support obligation. A number of other factors may occur to warrant a modification. Therefore, at the very least, have an attorney review the situation and advise you on your modification options.
If you’re ready to have your spousal support reviewed or modified, Contact Keithley Law, PLLC, PLLC today by calling (703) 865-7710 and schedule an initial consultation in our Fairfax law office with one of our family law attorneys. We can walk you through the steps to get the most out of your case.
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