Virginia's New Alimony Statute Creates a Trap for the Unwary

Virginia's recently revised spousal support statute may cause some unintended consequences to parties who have entered into a Property Settlement Agreement and request a Virginia court to incorporate the Property Settlement Agreement into a decree of divorce.

Prior to July 1, 1998, if a party sought a reservation of spousal support, it would be an abuse of discretion for a Virginia court to deny it. Bacon v. Bacon, 3 Va. App. 484, 351 S.E.2d 37 (1986). The only kind of reservation was a permanent one. Under new legislation which became effective in Virginia on July 1, 1998, if the court is determining a reservation of spousal support, there shall be a rebuttable presumption that the reservation will continue for a period equal to 50% of the length of the marriage. Once granted, the duration of the reservation shall not be subject to modification. Va. Code Section 20-107.1(D).

Even though parties have a Property Settlement Agreement which does not provide for spousal support at the present time, it is common practice for the Property Settlement Agreement to state that one of the spouses is awarded a reservation of spousal support. When the parties drafted such a provision for a reservation of spousal support, it was probably their intent that the spouse in whose favor the reservation was granted could, at any time in the future, ask the court to award spousal support. However, if their Property Settlement Agreement is incorporated into a Virginia divorce decree in a case which is filed after July 1, 1998, then it will be a case in which the right to spousal support is reserved and therefore it will be presumed that the reservation will last for one-half of the length of the marriage because there are no provisions in the Property Settlement Agreement to overcome the presumption.

The solution to prevent such unintended consequences is to use words of permanency in the Property Settlement Agreement and the decree of divorce to overcome the presumption.