By Alexander T. Lewis of Duff & Kronfeld, P.C. posted in Family Law on Wednesday, September 12, 2018.
We often speak with clients who have been ordered to pay spousal support for an indefinite period of time and can no longer work. Understandably, they want to know if they will still be required to pay spousal support. If your spousal support order is modifiable, then you have the option of filing a motion to modify your spousal support obligation with the court. In order to succeed, you will need to prove: (1) that there has been a material change in circumstances since the last spousal support order was entered; and (2) that such a change requires that the spousal support order be modified. One additional factor that must be considered by parties that have since remarried is, “can the court consider the income of my new spouse?” Based on a recent decision from the Virginia Courts, the answer is yes, in some circumstances.
In its recent decision, the Virginia Court of Appeals in Giambattista v. Giambattista discussed the role of ex-husband’s new wife and the impact on his ability to maintain his spousal support payments. In Giambattista, the ex-husband voluntarily retired from his position with the United States Secret Service as he could not keep up with the physical demands. As a result, he filed a motion with the court requesting that his $3,100 monthly spousal support obligation be reduced. In declining to reduce his monthly obligation, in addition to other factors, the Court of Appeals noted that ex-husband’s new wife was employed and there was evidence that she assisted with his expenses, including his support payments. As such, the Court of Appeals used this evidence, in part, in determining that ex-husband still had the ability to pay his spousal support order, despite the loss of his employment. Thus, the new spouse’s income, coupled with her use of that income to contribute to the ex-husband’s expenses, was a relevant consideration.
If you have any questions or would like to discuss your legal matter with an attorney, please contact Duff & Kronfeld, P.C. at (703) 591-7475 for a complementary, 30-minute consultation.