Family Law and Divorce Attorneys in Virginia

Can the Terms of My Divorce Change When I Retire?

When the court issues its final judgment on a divorce, it typically includes orders that stay in effect for years, such as orders for spousal support, child support, and child custody. Over time, circumstances may change to make those orders either obsolete or impractical to perform. A request to change the court’s orders in a divorce is officially called “post-judgment modification.” This blog goes over last year’s changes to Virginia law regarding retirement and spousal support orders.

Modifying Spousal Support Orders

Courts have the authority to change any orders they issue if doing so serves the interests of justice. Under Section 20-109 of the Code of Virginia, subsection (B), “the court may increase, decrease or terminate the amount or duration of the award upon finding that…there has been a material change in the circumstances of the parties, not reasonably in the contemplation of the parties when the award was made or…an event which the court anticipated would occur…does not in fact occur through no fault of the party seeking modification.”

In 2018, Section 20-109 was amended in an effort to address the issue of a party’s retirement and its potential effect on modifying spousal support. Under the amendment, an order “shall state whether the retirement of either party was contemplated by the court and specifically considered by the court in making its award, and, if so, the order shall state the facts the court contemplated and specifically considered as to the retirement of the party.”

Retirement Age Is a “Material Change of Circumstances”

The 2018 amendment added subsection (E) to Section 20-109 and provides that when the supporting spouse reaches “full retirement age” as defined by the Social Security Act, it constitutes a material change of circumstances. The maximum retirement age under federal law is 67 years old.

Discretionary Factors for Modifying Spousal Support Due to Retirement

The 2018 amendment also added subsection (F) regarding the factors for modifying spousal support awards based on retirement. Under subsection (F), the court has discretion in considering the original spousal support factors listed in section 20-107.1(E).

The original modification factors under Va. Code § 20-107.1(E) are:

  • “The obligations, needs and financial resources of the parties
  • The standard of living established during the marriage;
  • The duration of the marriage;
  • The age and physical and mental condition of the parties and any special circumstances of the family;
  • The extent to which the age, physical, and mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
  • The contributions, monetary and nonmonetary, of each party to the well-being of the family;
  • The property interests of the parties…;
  • The provisions made with regard to…marital property;
  • The earning capacity…of the parties;
  • The opportunity for…a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
  • The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential…;
  • The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
  • Such other factors…as are necessary to consider the equities between the parties.

Mandatory Factors for Modifying Spousal Support Due to Retirement

Also under subsection (F), the court is required to consider the following factors when determining whether to modify spousal support because of retirement:

  • “Whether retirement was contemplated by the court and specifically considered by the court when the spousal support was awarded;
  • Whether the retirement is mandatory or voluntary, and the terms and conditions related to such retirement;
  • Whether the retirement would result in a change in the income of either the payor or the payee spouse;
  • The age and health of the parties;
  • The duration and amount of spousal support already paid; and
  • The assets of property interest of each of the parties during the period from the date of the support order and up to the date of the hearing on modification or termination.

In summary, if you are paying spousal support and reach retirement age, you can ask the court to possibly lower what you have to pay. If retiring results in a reduced income, the court might reduce your spousal support obligations accordingly.

Up-to-Date Advice from Our Fairfax Divorce Attorneys

Our Fairfax divorce attorneys at Malinowski Hubbard are dedicated to providing you with top-quality legal representation when it comes to divorce matters. That is why we monitor the law to stay up-to-date on changes that could affect your divorce.

To schedule a free initial consultation, call Malinowski & Hubbard at (703) 935-4222 or contact us online today.

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