How the Courts Determine Pendente Lite Spousal Support in Virginia

When a husband and wife separate, it is sometimes necessary for one spouse to pay the other spouse alimony or spousal support. In Virginia, there are two general types of spousal support: pendente lite support—which is support payable prior to or during the pendency of a divorce proceeding—and post-divorce support. The Virginia General Assembly recently enacted a law, effective July 1, 2020, provides clarity regarding pendente lite spousal support.

Pendente lite spousal support can be ordered by a Juvenile and Domestic Relations District Court (“JDR”) upon the filing of a Petition for Separate Maintenance, or can be ordered by the Circuit Court in a divorce proceeding or on an appeal of a Petition from JDR.

Virginia Code § 16.1-278.17:1 provides a formula for determining the amount of pendente lite spousal support in a JDR court. This formula is presumptively correct, which means that the Court must order support in the amount determined by the guidelines and may only deviate from said guidelines for “good cause shown.” Such good cause may include “any relevant evidence relating to the parties’ current financial circumstances or the impact of any tax exemption and any credits resulting from such exemption that indicates the presumptive amount is inappropriate.” Virginia Code § 16.1-278.17:1(D).

The formula that the court is directed to use depends on whether the parties have minor children together. If the parties do have children together, the presumptive amount for spousal support is the difference between 26% of the payor spouse’s monthly gross income and 58% of the payee spouse’s monthly gross income. If the parties do not have any minor children in common, the presumptive amount of the award is the difference between 27% of the payor spouse’s monthly gross income and 50% of the payee spouse’s monthly gross income. Virginia Code § 16.1-278.17:1(C). These formulas only apply to cases where the parties’ combined monthly gross income does not exceed $10,000. Virginia Code § 16.1-278.17:1(E).

The above statute is only applicable in JDR court. However, as referenced above, a Virginia law was enacted to address pendente lite spousal support in Circuit Court cases. Effective July 1, 2020, Virginia Code § 20-103 was amended to specifically incorporate the above guidelines in circuit court cases. This change in the law will hopefully provide clarity to parties who are seeking spousal support and who have to pay spousal support.

If you have questions about spousal support or divorce in general and need assistance from someone with intimate knowledge Virginia family law, please do not hesitate to contact our firm at 804-423-1382 or to schedule a one-on-one consultation with one of our experienced Virginia attorneys.