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Spousal Support For a Disabled Spouse

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  • 11-15-2009, 09:27 PM
    lost boy
    Spousal Support For a Disabled Spouse
    My question involves divorce in the State of:Virginia
    My spouse of 15 years surprised me this week by leaving me taking the kids cutting off my access to our bank accounts and trying to get me to sign a "separation agreement"-perhaps I am blind but did not see it coming-my questions arise because I stayed home to raise our children for 13 years during the day while my wife worked and advanced her career, while I, in addition to caring for our children, bar-tended and went to college at night, earning my undergraduate degree and starting on a law degree, but then broke my spine and was infected with 3 disabling tick diseases and had to give up dream of practicing law and go on social security disability and am disabled and unable to work but still was caring for our youngest child as wife just got new high paying job (100 K+)-her agreement would keep me afloat for a few months but then I would be on my on own with virtually no income and high medical bills and little or no access to my kids-what if any recourse do I have in virginia? what of spousal support? separation agreement appears to have clause that makes it a binding part of eventual divorce settlement-and she knows if I don't sign it I'm without my kids, homeless and without meds and access to health care that much sooner-any help would be greatly appreciated.
  • 11-17-2009, 09:12 AM
    Mr. Knowitall
    Re: Spousal Support For a Disabled Spouse
    Spousal support is awarded and set by reference to statutory criteria:
    Quote:

    Quoting Virginia Code Section 20-107.1. Court may decree as to maintenance and support of spouses.
    A. Pursuant to any proceeding arising under subsection L of § 16.1-241 or upon the entry of a decree providing (i) for the dissolution of a marriage, (ii) for a divorce, whether from the bond of matrimony or from bed and board, (iii) that neither party is entitled to a divorce, or (iv) for separate maintenance, the court may make such further decree as it shall deem expedient concerning the maintenance and support of the spouses. However, the court shall have no authority to decree maintenance and support payable by the estate of a deceased spouse.

    B. Any maintenance and support shall be subject to the provisions of § 20-109, and no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse's favor a ground of divorce under the provisions of subdivision (1) of § 20-91. However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.

    C. The court, in its discretion, may decree that maintenance and support of a spouse be made in periodic payments for a defined duration, or in periodic payments for an undefined duration, or in a lump sum award, or in any combination thereof.

    D. In addition to or in lieu of an award pursuant to subsection C, the court may reserve the right of a party to receive support in the future. In any case in which the right to support is so reserved, there shall be a rebuttable presumption that the reservation will continue for a period equal to 50 percent of the length of time between the date of the marriage and the date of separation. Once granted, the duration of such a reservation shall not be subject to modification.

    E. The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision (3) or (6) of § 20-91 or § 20-95. In determining the nature, amount and duration of an award pursuant to this section, the court shall consider the following:
    1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
    2. The standard of living established during the marriage;
    3. The duration of the marriage;
    4. The age and physical and mental condition of the parties and any special circumstances of the family;
    5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
    6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
    7. The property interests of the parties, both real and personal, tangible and intangible;
    8. The provisions made with regard to the marital property under § 20-107.3;
    9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
    10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
    11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
    12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
    13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
    F. In contested cases in the circuit courts, any order granting, reserving or denying a request for spousal support shall be accompanied by written findings and conclusions of the court identifying the factors in subsection E which support the court's order. If the court awards periodic support for a defined duration, such findings shall identify the basis for the nature, amount and duration of the award and, if appropriate, a specification of the events and circumstances reasonably contemplated by the court which support the award.

    G. For purposes of this section and § 20-109, "date of separation" means the earliest date at which the parties are physically separated and at least one party intends such separation to be permanent provided the separation is continuous thereafter and "defined duration" means a period of time (i) with a specific beginning and ending date or (ii) specified in relation to the occurrence or cessation of an event or condition other than death or termination pursuant to § 20-110.

    H. Where there are no minor children whom the parties have a mutual duty to support, an order directing the payment of spousal support, including those orders confirming separation agreements, entered on or after October 1, 1985, whether they are original orders or modifications of existing orders, shall contain the following:
    1. If known, the name, date of birth and social security number of each party and, unless otherwise ordered, each party's residential and, if different, mailing address, residential and employer telephone number, driver's license number, and the name and address of his employer; however, when a protective order has been issued or the court otherwise finds reason to believe that a party is at risk of physical or emotional harm from the other party, information other than the name of the party at risk shall not be included in the order;

    2. The amount of periodic spousal support expressed in fixed sums, together with the payment interval, the date payments are due, and the date the first payment is due;

    3. A statement as to whether there is an order for health care coverage for a party;

    4. If support arrearages exist, (i) to whom an arrearage is owed and the amount of the arrearage, (ii) the period of time for which such arrearage is calculated, and (iii) a direction that all payments are to be credited to current spousal support obligations first, with any payment in excess of the current obligation applied to arrearages;

    5. If spousal support payments are ordered to be paid directly to the obligee, and unless the court for good cause shown orders otherwise, the parties shall give each other and the court at least 30 days' written notice, in advance, of any change of address and any change of telephone number within 30 days after the change; and

    6. Notice that in determination of a spousal support obligation, the support obligation as it becomes due and unpaid creates a judgment by operation of law.

    Quote:

    Quoting Virginia Code Section 20-108.1 Determination of child or spousal support.
    A. In any proceeding on the issue of determining spousal support, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court's decision shall be rendered based upon the evidence relevant to each individual case.

    B. In any proceeding on the issue of determining child support under this title or Title 16.1 or Title 63.2, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court's decision in any such proceeding shall be rendered upon the evidence relevant to each individual case. However, there shall be a rebuttable presumption in any judicial or administrative proceeding for child support, including cases involving split custody or shared custody, that the amount of the award which would result from the application of the guidelines set out in § 20-108.2 is the correct amount of child support to be awarded. Liability for support shall be determined retroactively for the period measured from the date that the proceeding was commenced by the filing of an action with any court provided the complainant exercised due diligence in the service of the respondent or, if earlier, the date an order of the Department of Social Services entered pursuant to Title 63.2 and directing payment of support was delivered to the sheriff or process server for service on the obligor.

    In order to rebut the presumption, the court shall make written findings in the order, which findings may be incorporated by reference, that the application of such guidelines would be unjust or inappropriate in a particular case. The finding that rebuts the guidelines shall state the amount of support that would have been required under the guidelines, shall give a justification of why the order varies from the guidelines, and shall be determined by relevant evidence pertaining to the following factors affecting the obligation, the ability of each party to provide child support, and the best interests of the child:
    1. Actual monetary support for other family members or former family members;
    2. Arrangements regarding custody of the children;
    3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to the custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation;
    4. Debts of either party arising during the marriage for the benefit of the child;
    5. Debts incurred for production of income;
    6. Direct payments ordered by the court for health care coverage, maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child and costs related to the provision of health care coverage pursuant to subdivision 7 of § 20-60.3;
    7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;
    8. Age, physical and mental condition of the child or children, including unreimbursed medical or dental expenses, and child-care expenses;
    9. Independent financial resources, if any, of the child or children;
    10. Standard of living for the family established during the marriage;
    11. Earning capacity, obligations and needs, and financial resources of each parent;
    12. Education and training of the parties and the ability and opportunity of the parties to secure such education and training;
    13. Contributions, monetary and nonmonetary, of each party to the well-being of the family;
    14. Provisions made with regard to the marital property under § 20-107.3;
    15. Tax consequences to the parties regarding claims for dependent children and child care expenses;
    16. A written agreement between the parties which includes the amount of child support;
    17. A pendente lite decree, which includes the amount of child support, agreed to by both parties or by counsel for the parties; and
    18. Such other factors, including tax consequences to each party, as are necessary to consider the equities for the parents and children.
    C. In any proceeding under this title or Title 16.1 or Title 63.2 on the issue of determining child support, the court shall have the authority to order a party to provide health care coverage, as defined in § 63.2-1900, for dependent children if reasonable under all the circumstances and health care coverage for a spouse or former spouse.

    D. In any proceeding under this title, Title 16.1 or Title 63.2 on the issue of determining child support, the court shall have the authority to order a party to (i) maintain any existing life insurance policy on the life of either party provided the party so ordered has the right to designate a beneficiary and (ii) designate a child or children of the parties as the beneficiary of all or a portion of such life insurance for so long as the party so ordered has a statutory obligation to pay child support for the child or children.

    E. Except when the parties have otherwise agreed, in any proceeding under this title, Title 16.1 or Title 63.2 on the issue of determining child support, the court shall have the authority to and may, in its discretion, order one party to execute all appropriate tax forms or waivers to grant to the other party the right to take the income tax dependency exemption for any tax year or future years, for any child or children of the parties for federal and state income tax purposes.

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