- Report Published -
|Rehabilitative Alimony and the Reservation of Spousal Support in Divorce Proceedings|
|Virginia State Bar; Family Law Section|
|HJR 69 (Regular Session, 1996)|
|This report is made pursuant to HR 69 (1996) relating to the issues of rehabilitative alimony and its relationship to the reservation of spousal support in divorce matters.|
Indefinite and Rehabilitative Alimony
Alimony awards can generally be divided into two separate types: periodic and lump sum. Lump sum alimony is a single payment which is generally made at the time of divorce; periodic alimony is a series of payments made after the divorce. Periodic alimony can further be divided into two subtypes: indefinite and rehabilitative. Both types of periodic alimony begin upon divorce, but each type ends at a different date. Indefinite alimony continues until the recipient dies or remarries. Rehabilitative alimony, by contrast, generally ends after a specified period of time or upon the occurrence of a specific event. For example, an award of rehabilitative alimony might terminate after three years, or upon the recipient's graduation from college or professional school. Rehabilitative alimony also terminates upon death or remarriage, just like indefinite alimony.
Indefinite alimony and rehabilitative alimony also differ in the conditions under which they can be modified. Indefinite alimony can be modified whenever there is a material change of circumstances which effects the financial situation of either the payor or the recipient. Where the court awards no alimony at all at the time of the divorce, it can still award indefinite alimony upon a later change of circumstances, as long as the divorce degree expressly reserved the right to grant such an award in the future, which is known as "granting a reservation". Such an award can be made months or even years after the date of the divorce decree.
Rehabilitative alimony, by contrast, can generally be modified only during the time period over which support payments are being made. Once the specific period ends or the specified event occurs, the support obligation terminates and the court cannot subsequently made any further support award. A court which can award rehabilitative alimony can also grant a divorce decree which does not reserve the right to grant additional support in the future, therefore preventing the court from making an award after the divorce has become final.
Current Virginia Law
Virginia law has always recognized the concept of indefinite alimony. The consensus of the family law bar and courts, however, is that present law does not permit the court to make an award of rehabilitative alimony. Present law also provides that the court must generally grant a reservation of the right to receive an award of alimony in the future. See, e.g., Bacon v. Bacon. 3 Va. App. 484, 351 S.E.2d 37 (1986).
In recent years, there has been substantial criticism of Virginia's refusal to recognize rehabilitative alimony. The refusal places Virginia in a distinct minority, as only one other state (Louisiana) follows the same rule. The other 48 states expressly permit the court to make an award of rehabilitative alimony as an alternative or in addition to an award of indefinite periodic or lump sum alimony.
The Current Study and Present Committee
In 1995, Virginia's General Assembly enacted House 10int Resolution Number 439, authorizing the Family Law Section of the Virginia State Bar, along with other designated interest groups to study and report on the issue of whether a rehabilitative alimony statute should be enacted, to determine the conditions under which such an award should be made and its relationship to the issue of the continued reservation of spousal support to a spouse, and to determine the statutory changes necessary to grant courts authority to award rehabilitative alimony. As a result, in the spring of 1995, the Family Law Section formed a study committee (the "Committee") consisting of members of its Board of Governors, private family law practitioners, and representatives of other organizations interested in family law issues. During the ensuing months, the Committee conducted numerous meetings, held a public hearing, received and considered public comments, studied the law of other states, reviewed economic data compiled in states which allow rehabilitative alimony, and surveyed law review articles and academic studies of the issue.
Because of the complexity of issues involved, the Committee was not able to complete its study by the opening of the 1996 legislative session. In its 1996 legislative session, the General Assembly enacted House Joint Resolution 69, which continued the Committee and asked it to report its conclusions in the 1997 legislative session. See Appendix A. During 1996, the Committee held additional meetings and continued to solicit and to consider public comments on draft legislation.
Having thoroughly studied the many issues involved over the course of more than a year, the Committee recommends that the General Assembly enact the amendments to Sections 20-107.1 and 20-109 set forth at Appendix B to this report. Appendix C to this report contains examples which illustrate the way in which the recommended amendments to the Virginia Code might be applied in various hypothetical examples.
The remainder of this report sets forth the findings and conclusions of the Committee with respect to the issues under its purview (Part II); describes the public policy considerations which informed and guided the Committee in reaching its conclusions (Part III); narrates in greater detail the work of the Committee in conducting its meetings and its public hearing, in its review and study of the laws of other states, and summarizes public comments (Part IV); and provides a section-by-section analysis of its recommended statutory amendments (Part V).