Modification Of Spousal Support Upon Retirement In Virginia

Introduction

     Awards of spousal support are very common in divorces in Virginia. However, many situations have a need for modification of spousal support for several reasons. One of the more common reasons is the need to modify spousal support is the retirement of the paying party.

Retirement and a Material Change in Circumstances

     In order to modify an award of spousal support, the party requesting modification must prove that a material change in circumstances exists. Retirement from employment can be a material change in circumstances, depending on the facts surrounding the retirement.

     For example, the spouse paying spousal support may have worked in construction prior to their retirement. It is easy to see how the retiring spouse can no longer work due to the physical requirements of the field and the burden that would place on them at retirement age. The retiring spouse could file for a modification of spousal support due to their significant decrease in income, stating that they no longer have the capacity to work and earn the same level of income.

      It is possible that the Court may deny a request for modification of spousal support due to retirement. If the retiring spouse voluntarily retired at a time when it was not necessary to due so, meaning they can still perform their job requirements at a level effective enough to maintain their source of income, the Court may deny the request to modify the amount of spousal support being paid to the other spouse. In other cases, courts may find a party is not yet eligible for social security, and could continue to work, perhaps at a lower rate of pay.

Applicable Case Law

     In Baker v. Baker, No. 1476-22-1 (Va. App. Mar. 12, 2024), the parties had a settlement agreement providing that husband would pay wife $1,700 per month, with the amount and duration being modifiable. Husband was a construction project manager making $156,000 per year, and retired at the age of 70 with his now sole source of income being $45,000 per year from social security.

     Initially, the court found that his retirement was voluntary, and therefore it did not justify a modification of his spousal support obligation and imputed his full pre-retirement income, denying his motion. On appeal, the appellate court ruled that the trial court placed too much emphasis on the “voluntary” nature of husband’s retirement. It was determined that the trial court erred in imputing husband’s entire pre-retirement income, and in dismissing husband’s testimony that he could not meet the physical requirements of the job.

We Can Help

     If you would like to discuss your options related to the modification of spousal support, please call one of our offices at (804) 325-1245 (Richmond) or (757) 941-4298 (Williamsburg). Our team of experienced family law attorneys can assist you in a variety of spousal support modification matters. 

Special thanks to Owen Togna for editorial assistance in drafting this article.