On July 1, 2018, a new statute in Virginia went into effect dealing with the modification of spousal support and retirement age. It’s important to understand before this case law meted out certain parameters – and quite frankly the absence of certain parameters – in trying to modify a spousal support application upon one’s retirement.
A little background: Whenever you discuss spousal support, you refer to two people, the payor spouse who pays the support and the recipient who receives the spousal support.
Prior to the enactment of the statute, there was no defined retirement age in any case that had been issued by the Court of Appeals or the Supreme Court of Virginia; therefore, people who were 65, 66, 67 years old seeking to retire were going in front of the court and a lot of them were getting the message they had to keep on working.
To modify spousal support in Virginia, it’s necessary to demonstrate to the court two things: One has been a material change in circumstances on either the part of the payor spouse or the recipient spouse and second, does that change in circumstances justify a modification in the spousal support amount.
Under this new statute, reaching full retirement age as defined by the Social Security Administration constitutes a material change in circumstances that allow you to go before the court and ask for a modification in the spousal support.
Additionally, this statute deals with a very important issue that was created by an appellate case called Stubblebine v. Stubblebine. In that case, Mr. Stubblebine said, ‘I have paid all of this spousal support for all of these years and my wife has accumulated all of these assets, and now I wish to retire.’ The court found that he had sufficient assets even though he had retired. The court decided Mr. Stubblebine had to reach into his assets to keep paying the spousal support.
This new statue, which was passed by the Virginia General Assembly this spring, requires that you focus on the assets of both the recipient spouse and the payor spouse in determining whether there should be a modification in spousal support.
It remains to be seen how the courts are going to treat this “factors analysis” under the new statute in looking at the assets of both parties and determining at retirement age whether spousal support should be modified or not.
Listen to Mahoney Richmond Partner Reeves W. Mahoney talk about the new statute: