Can a divorced lawyer husband reduce spousal support in Virginia to his ex-wife upon his self-employment?
In the unpublished case of Amberly v. Amberly, Record No. 1783-09-4, (Va. App., February 2, 2010), the Virginia Court of Appeals upheld the trial court judge denial of the attorney husband’s motion to modify support and award to wife of her attorney’s fees. .
Husband was an attorney working in trademark and patent litigation, making approximately $100,000 a year. When the husband and wife divorced in Virginia, the divorce court judge ordered husband to pay $2,200 a month in spousal support to wife for fifteen years. Husband was concerned about losing his job and starting looking for employment. When husband could not find a job, he started his own firm as a self-employed attorney-at-law. The lawyer husband filed a motion in the Virginia Circuit Court to modify his spousal support obligation due to his self-employment. During the three and a half months prior to the hearing on modifying support, husband earned approximately $1,300 a month from his self-employment as a lawyer and paid no support to his wife. The divorce court denied the husband’s motion to modify spousal support and ordered husband to pay $10,000 in attorney’s fees to wife for defending the motion. The husband appealed.
The Virginia Court of Appeals reviewed the law applicable to the case. Under Section 20-109 of the Code of Virginia, a party may modify the amount or duration of an order for spousal support or maintenance as the circumstances may make proper. The party asking for a modification of support must prove a material change in circumstances and that this change warrants a modification in support. The material change must bear upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay. Street v. Street, 25 Va. App. 380, 488 S.E.2d 665 (1997). The trial court has the discretion to determine whether a spouse is entitled to a modification of support, and that determination will not be overturned unless it is clearly unjust.
In this case, the lawyer husband introduced only his own testimony that he was involuntarily unemployed, with little documentary support or other witnesses. In addition, the attorney husband had failed to pay his court ordered support even before he lost his job. The trial court judge had noted that the husband made his motion to modify support only a year after the final hearing in the divorce case. On top of that, the judge doubted the credibility and completeness of the husband’s presentation concerning his reduction in income. Consequently, the trial court judge found that the reduction in husband’s income was his own fault, and not a material change in circumstances since the last support order.
The Virginia Court of Appeals found no error in the trial court judge’s fact findings or application of the law. Although there was some evidence that wife’s income had increased, the court restated the rule that not every material change in circumstances justifies a modification of support, citing Blackburn v. Michael, 30 Va. App. 95, 515 S.E.2d 780 (1999). Further, the Virginia Court of Appeals did not find an abuse of discretion in the trial court’s award of $10,000 in attorney’s fees to wife, as she incurred more than three times that amount in defending the motion while husband represented himself pro se and husband had offered little documentary evidence of his financial condition.
You should consult with your Virginia divorce lawyer concerning whether spousal support may be modified in your circumstances.