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1998 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 20-107.1 and 20-109 of the Code of Virginia are amended and reenacted as follows:
§ 20-107.1. Court may decree as to maintenance and support of spouses.
A. Pursuant to any proceeding arising under subsection L of § 16.1-241 or upon the entry of a decree providing (i) for the dissolution of a marriage, (ii) for a divorce, whether from the bond of matrimony or from bed and board, (iii) that neither party is entitled to a divorce, or (iv) for separate maintenance, the court may make such further decree as it shall deem expedient concerning the maintenance and support of the spouses. However, the court shall have no authority to decree maintenance and support payable by the estate of a deceased spouse.
B. Any maintenance and support shall be subject to the
limitations set forth in provisions of § 20-109, and
no permanent maintenance and support shall be awarded from a spouse if there
exists in such spouse's favor a ground of divorce under the provisions of
subdivision (1) of § 20-91. However, the court may make such an award
notwithstanding the existence of such ground if the court determines from clear
and convincing evidence, that a denial of support and maintenance would
constitute a manifest injustice, based upon the respective degrees of fault
during the marriage and the relative economic circumstances of the parties.
C. The court, in its discretion, may decree that maintenance and
support of a spouse be made in periodic payments for a defined duration,
or in periodic payments for an undefined duration, or in a lump sum
award, or both in any combination thereof.
D. In addition to or in lieu of an award pursuant to subsection C, the court may reserve the right of a party to receive support in the future. In any case in which the right to support is so reserved, there shall be a rebuttable presumption that the reservation will continue for a period equal to fifty percent of the length of time between the date of the marriage and the date of separation. Once granted, the duration of such a reservation shall not be subject to modification.
E. The court, in determining whether to award support and
maintenance for a spouse, shall consider the circumstances and factors which
contributed to the dissolution of the marriage, specifically including adultery
and any other ground for divorce under the provisions of subdivisions (3) or
(6) of § 20-91 or § 20-95. If the court determines that an award
should be made, it shall, In determining the nature,
amount, and duration of an award pursuant to this section, the
court shall consider the following:
1. The earning capacity, obligations, needs and financial resources
of the parties, including but not limited to income from all pension, profit
sharing or retirement plans, of whatever nature;
2. The education and training of the parties and the ability and
opportunity of the parties to secure such education and training;
3. The standard of living established during the marriage;
4. 3. The duration of the marriage;
5. 4. The age and physical and mental condition of the
parties and any special circumstances of the family;
5. The extent to which the age, physical or 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;
6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
7. The property interests of the parties, both real and personal, tangible and intangible;
8. The provisions made with regard to the marital property under §
20-107.3; and
9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
11. 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, including the length of time one or both of the parties have been absent from the job market;
12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
9. 13. Such other factors, including the tax consequences
to each party, as are necessary to consider the equities between the parties.
F. In contested cases in the circuit courts, any order granting, reserving or denying a request for spousal support shall be accompanied by written findings and conclusions of the court identifying the factors in subsection E which support the court's order. If the court awards periodic support for a defined duration, such findings shall identify the basis for the nature, amount and duration of the award and, if appropriate, a specification of the events and circumstances reasonably contemplated by the court which support the award.
G. For purposes of this section and § 20-109, "date of separation" means the earliest date at which the parties are physically separated and at least one party intends such separation to be permanent provided the separation is continuous thereafter and "defined duration" means a period of time (i) with a specific beginning and ending date or (ii) specified in relation to the occurrence or cessation of an event or condition other than death or termination pursuant to § 20-110.
§ 20-109. Changing maintenance and support for a spouse; effect of stipulations as to maintenance and support for a spouse; cessation upon cohabitation, remarriage or death.
A. Upon petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance that may thereafter accrue, whether previously or hereafter awarded, as the circumstances may make proper. Upon order of the court based upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more commencing on or after July 1, 1997, the court may decrease or terminate spousal support and maintenance unless (i) otherwise provided by stipulation or contract or (ii) the spouse receiving support proves by a preponderance of the evidence that termination of such support would constitute a manifest injustice.
B. The court may consider a modification of an award of spousal support for a defined duration upon petition of either party filed within the time covered by the duration of the award. Upon consideration of the factors set forth in subsection E of § 20-107.1, the court may increase, decrease or terminate the amount or duration of the award upon finding that (i) 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 (ii) an event which the court anticipated would occur during the duration of the award and which was significant in the making of the award, does not in fact occur through no fault of the party seeking the modification.
B. C. In suits for divorce, annulment and separate
maintenance, and in proceedings arising under subdivision A 3 or
subsection L of § 16.1-241, if a stipulation or contract signed
by the party to whom such relief might otherwise be awarded is filed before
entry of a final decree, no decree or order directing the payment of support
and maintenance for the spouse, suit money, or counsel fee or establishing or
imposing any other condition or consideration, monetary or nonmonetary, shall
be entered except in accordance with that stipulation or contract. If such a
stipulation or contract is filed after entry of a final decree and if any party
so moves, the court shall modify its decree to conform to such stipulation or
contract.
C. D. Unless otherwise provided by stipulation or
contract, spousal support and maintenance shall terminate upon the death of
either party or remarriage of the spouse receiving support.
2. That the provisions of this act shall apply only to suits for initial spousal support orders filed on or after July 1, 1998, and suits for modification of spousal support orders arising from suits for initial support orders filed on or after July 1, 1998.