If you live in West Virginia and are facing a divorce that includes alimony, this overview will serve as a primer to answer your basic questions on how alimony in West Virginia is treated. Divorce is never an easy road, so a little knowledge can go a long way in giving you some peace of mind and making the process a little smoother.
What is Alimony?
In West Virginia, alimony is sometimes known as spousal support and alimony pendente lite. For this article, we will use these terms interchangeably. This payment is made from one spouse to the other, as a way to help the recipient spouse avoid financial hardships. More often than not, these payments are sourced from income.
If one spouse does not have enough money to support themselves but does have other assets (e.g., real estate or other investments), a court may order that payments come from these sources of income. No matter how the issue is resolved, the payment amounts must be fair, and they may not exceed the payor’s ability to pay.
In some cases, involvement from the court is not always needed. For instance, some spouses may agree on an amount and a length of time that payments will be made. They may reach this agreement by creating either a separation or property settlement agreement.
In essence, these agreements are contracts that advise the court how they wish to divide up their property, raise their children, and make support payments (if they are part of the agreement).
However, if the spouses are not able to come to an agreement about these issues, a court will step in and assist during this process.
Types of Alimony in West Virginia
Either spouse may ask for alimony, but the spouses must be living separately before a court will order support payments.
The state of West Virginia splits alimony into the following types:
- Temporary Alimony references payments that are made during the divorce process. For example, a stay-at-home mom who cares for minor kids will probably need financial help to pay for gas, groceries, clothing, and supplies before the divorce is finalized.
- Permanent Alimony refers to payments that last as long as it takes for the recipient spouse to become self-reliant. If the arrangement is fair, these payments could last for the entire lifetime of the recipient.
However, the terms can be changed, even though this type is called “permanent.” For instance, they can be altered via court order, death, or remarriage.
- Rehabilitative Alimony refers to payments that help the receiver become gainfully employed again. These monies should be used to pay for training or education, and they must contribute to a reasonable goal that will result in self-support.
For instance, the recipient spouse cannot claim that he or she would like to become an astronaut, so the paying spouse has to bankroll an exorbitant dream. Rather, the recipient spouse needs to have a reasonable goal (e.g., becoming a nurse).
- Support in Gross refers to awards that are set amounts that will be paid for specific amounts of time. For instance, the court could order $70,000 of support to be paid monthly for 7 years.
But while payments can be periodic, they may also be paid in a lump sum. Therefore, the paying spouse would give the other the entire $70,000 all at once.
Is There a Formula for Alimony in WV?
There is no mathematical formula for calculating alimony in West Virginia. Instead, there are over a dozen different factors that a court will examine when determining whether alimony will be awarded in your specific case.
Theoretically, it is impossible to calculate the total amount you will receive, as well as the specific payments. However, take a look at the factors in the next portion as a way to find out what you will need to focus on as your case progresses.
As you may have already guessed, the court will consider factors such as the custodial status of children, standard of living, and marital fault when determining if alimony is to be awarded (as well as the amount of the award).
In short, a judge awards alimony on a case-by-case basis.
Factors That Affect Alimony
When a court approves an alimony request, they call it an “award.” Generally speaking, an alimony award is based on the necessities of the recipient spouse and the monetary resources of the payor spouse.
If the marriage was dissolved as the result of cruelty, crime, or adultery, the court must take this misconduct into consideration when deciding whether to award any alimony (and how much it will be).
For instance, an extramarital affair will work against the unfaithful spouse, but it does not definitively bar him or her from receiving spousal support. And if both spouses were unfaithful during the marriage, the court will compare this conduct when they determine the award.
Other factors that determine the specifics of spousal support include:
- How long the marriage lasted
- How long the spouses lived together during the marriage
- The income of each spouse and recurring payouts from any source
- The earning capacity of each spouse, based on factors such as skills, level of education, work experience, and the length of time he or she was out of the job market to care for children
- The division of marital property
- The ages, mental states, and emotional states of each spouse
- The education qualifications of each spouse
- The education or work opportunities either spouse sacrificed during the marriage
- The standard of living during the marriage
- The probability of the recipient spouse to increase his or her earning capacity through additional training or schooling
- Any contribution made to one spouse’s career by the other
- Healthcare costs
- The cost of getting a degree or pursuing vocational training
- The cost of sending minor kids to school
- The tax consequences of support payments
- The economic feasibility of the recipient spouse working outside the home if he or she has custody of minor kids
- The financial needs of each spouse
- Legal obligations
- The demands and costs associated with raising a disabled child
Can Alimony Be Changed?
Yes, either of the spouses can ask the courts to decrease, increase, or even cease alimony payments at any time. Furthermore, either one can ask the court to extend the payments if there has been a notable change in either spouse’s individual circumstances.
Usually, these changes relate to finances (e.g., the loss of employment). A court may create a new order that reflects these changes, as long as it fairly considers the needs of both spouses.
If a recipient spouse remarries, temporary and permanent support payments cease. But rehabilitative alimony is ongoing, even if the recipient spouse gets remarried during the first four years of the rehabilitative period.
If either spouse passes away, both permanent and temporary alimony top. However, rehabilitative alimony only stops if the recipient spouse dies. But if the payor spouse dies, rehabilitative support and support in gross continue unless these payments would be unfair to his or her estate.
How Long Does Alimony Last?
The duration of the alimony is contingent on the judge’s decision. Bear in mind that you and your spouse can alter these payments at any time. And as previously discussed, the payments are based on certain life events.
For instance, the death of either spouse will affect the payments of alimony, except for lump-sum alimony. Meanwhile, the recipient spouse has to pass away in order for rehabilitative alimony to cease.
Here is one common way to measure alimony: One year of alimony shall be paid for every three years of marriage. However, this rule of thumb is very general, so you can expect the outcome to be different.
What If I Do Not Pay Alimony?
The owed monies are known as alimony arrears, and they may be collected via mediation, wage garnishment, or small claims court. Failure to comply with a court-ordered alimony agreement may also result in a contempt-of-court charge against the payor.
Alimony mediation is performed when a mediator is brought in to help the ex-spouses reach a mutual agreement about the payment of spousal support and other issues that arise during the divorce (e.g., property division). Since this mediation helps spouses avoid going to court, it may be a viable solution for you.
The path through divorce is often winding and confusing, and it is wrought with lots of stress and uncertainty. Thus, it is always best to discuss your situation and any specific questions or concerns with your legal team.