By Alexander T. Lewis of Duff & Kronfeld, P.C. posted in Family Law on Tuesday, May 29, 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 warrants that the spousal support order be modified.
While there are numerous cases on this issue, the Virginia Court of Appeals decision in Davis v. Davis is illustrative of just how difficult it can be to lower your spousal support obligation. In Davis, the ex-husband was ordered to pay his ex-wife $5,100 per month in spousal support. Also, at the time of their divorce, each party received over $800,000 in property. Four years after the divorce was entered, the ex-husband was diagnosed with late stage cancer and he was no longer able to work at his job, where he had been earning $18,000 per month, and went on disability. As a result, the ex-husband filed a motion to modify his spousal support obligation, arguing that his income decreased substantially, and without a reduction, he would deplete the assets he received in the divorce in five years.
The trial court reduced the ex-husband’s spousal support obligation by $1,600, but did so solely on the basis that the ex-wife had begun receiving disability payments of her own. The trial court refused to lower the amount any further and paid no mind to the fact that the ex-husband would be forced to eventually deplete his assets to pay the support. The Court of Appeals affirmed the trial court’s decision and made clear that Virginia law contemplates the fact that a party paying support may be forced to draw from his or her assets to pay support, regardless of any change in income.
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.