Will a Virginia court reduce spousal support when the husband loses his job?
Not always, according to the unpublished opinion of Lewis v. Lewis, Record No. 1230-10-2 (Va. App. 2010), where the Court of Appeals of Virginia determined that the husband’s termination did not reflect a material change of circumstances bearing on his ability to pay the support amounts entered in the final divorce decree.
The parties were married for thirty-nine years prior to their separation, and the final divorce decree was entered two years later. In the final decree, the Circuit Court established the guidelines for the husband’s payment of spousal support. At the time of the divorce, the husband was employed and earning a fairly substantial income and the wife was unemployed.
Seven years later, the husband’s position was eliminated, and he was forced to pay for his own medical insurance benefits. Consequently, the husband filed a motion to reduce or terminate his spousal support. At that time, the wife was middle-aged and suffered from a serious degenerative disease. The husband, prior to the filing of his motion, however, had purchased a second residence with his fiancée. Thus, at the time of hearing, he owned two residences: his primary residence with no mortgage and a second home with mortgage payments and necessary repairs. At the hearing, the Virginia Circuit Court held that the husband did not prove a material change in circumstances, because “[w]hile there has been a slight reduction in [the husband’s] income due to his termination, [husband] continues to own substantial assets and has voluntarily taken on financial obligations.”
In his appeal, the husband argued that the Circuit Court erred by comparing his income and expense statement at the time of the divorce with his income and expense statement at the time of the hearing. At the hearing, the Circuit Court concluded that the financial reports reflected a decrease of only a few hundred dollars. In addition, the fact that the husband “voluntarily obligated himself on a mortgage for the second house” and had substantial assets (including the houses and funds in a bank account and 401(K) plan) supported a finding of no material change in circumstances. Furthermore, the Court found that the husband’s expenses were “inflated” because they included his fiancée’s expenses as well as his own. Therefore, the Circuit Court ruled that there had been no material change.
In reviewing the husband’s appeal, the Court of Appeals noted Virginia Code §20-109, which states, “Upon petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance . . . as the circumstances may make proper.” Moreover, the Court recognized that the party moving for a modification of support bears the burden of proving both a material change in circumstances and that the change warrants a modification of support. Schoenwetter v. Schoenwetter, 8 Va. App. 601, 383 S.E.2d 28 (1989). That material change in circumstances “must bear upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay.” Hollowell v. Hollowell, 6 Va. App. 417, 369 S.E.2d 451 (1988). In this case, the Court of Appeals found that the evidence supported the Circuit Court’s decision and affirmed that there had been no material change in circumstances warranting a reduction or elimination of the husband’s spousal support obligations.
You should consult with your Virginia divorce lawyer, or Richmond divorce lawyer James H. Wilson, Jr., Attorney & Counsellor at Law, to discuss your propects for a modification of spousal support.