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Spousal Support and Retirement or Do I still have to pay spousal support when I retire?
Posted by Dick Boatwright on December 28, 2017
Individuals who have signed a Marital Agreement requiring them to pay spousal support to a former spouse as well as those individuals whose Final Decree of Divorce directs the payment of spousal support to a former spouse, want to know how the payor’s prospective retirement will affect that obligation. Likewise, individuals (usually former wives) whom are receiving periodic spousal support payments need to know whether a prospective retirement will affect his/her payment.
Planning for retirement can be challenging even when spousal support obligations are not a part of the landscape. When the possible or probable effect on a spousal support obligation is in play, the stakes for both spousal support payors and recipients can be elevated.
If the Agreement or Final Decree simply established a periodic spousal support amount leaving future modification to the Court’s discretion, then the effect of a retirement is unfortunately difficult to predict. There is in Virginia, no bright line rule that answers directly the question whether and to what extent a spousal support obligation will be reduced or eliminated upon retirement.
Under Virginia Code Section 20-109(A) the Court may “[u]pon petition of either party . . . [modify] spousal support . . . as the circumstances may make proper.”
In the case of Schoenwetter v. Schoenwetter, 8 Va. App. 601 605, (1989) ), the Court of Appeals held ” [a] party seeking modification of spousal support pursuant to Code Section 20-109 bears the burden of proving “both a material change in circumstances and that this change warrants a modification of support.”
In the case of Yohay v. Ryan, 4 Va. App. 559, 566, (1987) the Court of Appeals held “[a] material change in circumstances, standing alone, does not provide a basis for the trial court to modify its support decree. A modification is appropriate only after [italics added] the court has considered the material change in circumstances in relation to . . . the present circumstances of both parties . . . ”
Significantly the Supreme Court of Virginia held in Antonelli v. Antonelli, 242 Va. 152, 156, (1991) that “[a] reduction in income resulting from a voluntary employment decision does not require [italics added] a corresponding reduction in the payor spouse’s support obligations, even if the decision was reasonable and made in good faith.
In the case of Stubblebine v. Stubblebine, 22 Va. App. 703, (1996) the Court of Appeals stated “When considering the issue of spousal support, . . . the trial court must take into account the receiving spouse’s needs and ability to provide for the needs, and balance those against the other spouse’s ability to provide support
For those spouses who are entering the process of separation and divorce where spousal support will be set and could extend to either party’s retirement, both parties will benefit if guidelines can be established in the Marital Agreement at the outset thereby eliminating the prospect of Court intervention later with an uncertain outcome.
Can I get out of the Property Settlement Agreement if it is unfair?
Posted by Dick Boatwright on April 11, 2016
Clients who have signed a Property Settlement Agreement, aka Marital Agreement, aka Separation Agreement (Agreement) with their spouse often ask whether it is possible to avoid or “get out” of the Agreement. The short answer is that avoiding the obligations set out in a signed Agreement is quite difficult. Our appellate Courts in Virginia have stated that these agreements resolving issues arising out of the separation of married persons are “favored in the law and such will be enforced unless their illegality is clear and certain.” (Cooley v. Cooley, 220 Va. 749, 752, (1980).
In the case of Galloway v. Galloway, our Court of Appeal stated the policy as follows: “‘Every person is entitled to dispose of his property, in such manner and upon such terms as he chooses, and whether his bargains are wise, or discreet, or profitable, or unprofitable, or otherwise, are considerations not for courts of justice, but for the party himself to deliberate upon.'” Galloway, 47 Va. App. 83 (2005),
Often the Agreements will contain language stating that “each party considers the terms of this Agreement to be fair and not unconscionable [dramatically unfair] and entered into voluntarily.” Such language creates a presumption that the agreement is not unconscionable. (Virginia Code § 20-151(B),)
Marriage is a confidential relationship of trust imposing the highest fiduciary duty upon the spouses in their inter-marital dealings. However, “[i]f a husband and wife separate and employ attorneys to negotiate an agreement in settlement of their property rights, they become adversaries and their former fiduciary or confidential relationship ends.” Barnes v. Barnes, 231 Va. 39, 42, (1986)
As a result the husband or wife who asserts that the Agreement is invalid “ha[s] the burden at trial to prove by clear and convincing evidence the grounds alleged to void or rescind the agreement.” (Drewry v. Drewry, 8 Va.App. 460, 463, 1989 )
In order to meet this burden, the objecting spouse is required to demonstrate 1) a gross disparity existed in the division of assets4 and 2) the presence of overreaching or oppressive influences.( Galloway v. Galloway, 47 Va. App. 83, 92, (2005) .
In the case of Drewry v. Drewry ( cited above) Mrs. Drewry appealed a decision of the Botetourt County Court holding the Agreement she signed with her husband valid. Mrs. Drewry contended on appeal that although she received a cash payment from her husband under the Agreement she had waived her claims to the marital home, the family business and spousal support and that the Agreement was unfair. She also claimed to be suffering from mental illness when she signed the Agreement and her doctors supported her claim. Lay witnesses however testified she appeared to be in control of her faculties. The Court of Appeals upheld the trial court. Significantly there was no evidence Mr. Drewry had taken advantage and in fact, it was Mrs. Drewry who suggested they enter into the Agreement. So gross disparity in the Agreement coupled with testimony of mental illness by doctors was insufficient to enable Mrs. Drewry to avoid the consequences of the Agreement.
However in the case of Sims v. Sims (55 Va. App. 340 (2009) the Court of Appeals reversed the trial court’s decision which had upheld the validity of the parties’ Agreement. In Sims, the Mr. Sims retained all of the marital assets of value, including the home, a profit sharing plan and other assets. Mrs. Sims received a truck and her personal property. Significantly, Mrs. Sims at the time she signed the Agreement was physically and mentally disabled and unable to work. She was eligible to receive food stamps. The Court said the State had an interest in the outcome if one spouse was left in “necessitous circumstances” and might become “a public charge.” The Court stated, “[a]accordingly, we [hold] that the agreement, which relinquished Mrs. Sims’ claim to “almost 100% of the marital estate,” and “left her penniless with no practical means for supporting herself,” [is] unconscionable. Sims, Id. at 353,
Mrs. Sims circumstances were extreme and she was able to avoid the consequences of signing the Agreement. Mrs. Drewry’s circumstances were not extreme enough. It is most advisable to review any proposed Separation Agreement/Marital Agreement or Property Settlement Agreement with your attorney to determine whether it is fair under Virginia law.