Can I pay temporary child or spousal support from our savings?

When you are going through a divorce, saving as much of the marital assets (such as your checking and savings account) can be critical to most people.  Meanwhile, the spouse responsible for paying support has to figure out how to pay his/her regular bills, possibly for two residences, plus the added expenses for attorney’s fees and support (either child or spousal support) pending the final divorce hearing.  Can you use the money in your joint checking account to pay spousal support? What about from the joint savings account? Or, does it have to be paid from your current income/salary?

Or, the spouse who is receiving support may be concerned about the source of funds being used to pay her temporary spousal support (“alimony”). Can your spouse use marital assets to pay you?  What if this would leave nothing in your savings account by the time the final divorce hearing arrives?

Effective on July 1, 2016, the Virginia legislature passed a new law to address these concerns. Specifically, Virginia Code § 20-103 was modified to include the following:

“A1. Any award or order made by the court pursuant to subsection A shall be paid from the post-separation income of the obligor unless the court, for good cause shown, orders otherwise. Upon the request of either party, the court may identify and state in such order or award the specific source from which the financial obligation imposed is to be paid.”

 In short, the statute now requires that any temporary support (i.e., child support or spousal support) must be paid from a person’s income earned after the parties’ date of separation, and not from marital assets.  If the paying spouse has a valid, good cause reason to pay the temporary support from marital assets, they may be permitted to pay from those assets but only if permitted by the Court.

The new law was passed to respond to concerns raised after a 2013 Court of Appeals decision, Wright v Wright, 61 Va. App. 432, 463 (2013). In this case, the Court held that the trial court was not required to consider the husband’s post-separation income or other separate assets in determining whether the husband unfairly spent marital assets following the parties’ separation.  Specifically, the husband was paying spousal support from the parties’ marital assets, which ultimately reduced the value of the marital funds that were to be divided at the time of the final divorce hearing.  Arguably, the Court’s decision in this case set a precedent that it was not improper for the Husband to pay spousal support from the parties’ assets.

While the new law passed this year directs courts to order temporary spousal support (or child support) to be paid from income, not assets, it does not address the spending of marital assets to pay support or other expenses prior to any court order being entered.

If you are concerned about the issue of paying support with marital assets,  you should consult with an experienced family law attorney knowledgeable about support and property issued in Virginia divorces.

If you need assistance in a family law matter, please do not hesitate to contact us here.

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