When people are considering their options in divorce cases, one question that invariably arises is whether spousal support will need to be paid and, if so, how long will it last. This can be an acrimonious subject; after all, the idea of giving money every month to someone you may strongly dislike is very unappealing. In fact, some folks want absolutely nothing to do with their former spouse after a divorce. Nevertheless, as a practical matter the courts may force divorcing parties to maintain some semblance of the relationship through orders related to custody and visitation of children or facilitating payments of support.
Ultimately, the issue of spousal support is a discretionary issue for the trial court. This means that the Court is not compelled to award it; however, depending on the facts and circumstances at issue, may decide to award it.
Specifically, Courts are guided in this matter by Virginia Code 20-107.1. This Section lays out the factors that must be considered in coming to a conclusion as to whether or not to award spousal support.
To be sure, awards of spousal support are common, whether awarded for a defined duration or on a permanent basis. However, this is not to say the award of spousal support is a guarantee—even in cases where the marriage is long and the requesting spouse has financial needs. The requesting spouse still “bears the burden of proving all facts necessary for an award, including evidence of financial need reasonably separate from the needs of others for whom the party paying support either owes no obligation or will be satisfying that obligation, if owed, by other means.” Robbins v. Robbins, 48 Va. App. 466, 484, 632 S.E.2d 615, 624 (2006).
In other words, a requesting spouse cannot just assume the award will be automatic. He or she must still put on evidence.
This principle was articulated most recently by the Virginia Court of Appeals in the case of Byrd v. Byrd. In this case, the Virginia Court of Appeals overturned the trial court’s award of spousal support Diane Revere Byrd. Id. In so ruling, the Court pointed out that Ms. Byrd had simply produced no evidence to support her request. Id. Even though her need may have been apparent through the trial court’s extrapolation of the husband’s testimony, this was not sufficient to satisfy the requirements of the Code. Id.
It seems clear that in this case, the trial court felt that Ms. Byrd needed support. However, as articulated by the Virginia Court of Appeals, it still remains the burden of the person requesting spousal support to make his or her case. Failure to do so could leave a needy spouse without a means of future support!