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Retirement During a Virginia Divorce

June 5, 2024

Many people face a divorce after the age of 50.  One major issue that arises during this time is whether or when to retire. This decision can have a significant impact on a divorce proceeding in Virginia.  Below, we explain a few points you should consider if you are facing divorce in Virginia when you or your spouse plan to retire. Keep in mind, every case is unique. It is wise to consult with an experienced Virginia divorce attorney (link to contact us) to discuss the impact retirement could have on your case.    

Impact of Retirement on Spousal Support in Virginia

When setting spousal support, Virginia trial courts are required to consider numerous factors, including: the age and physical condition of each party, plans made during the marriage about employment, and the earning capacity of each party.  You can read the Virginia spousal support statute here (link to : https://law.lis.virginia.gov/vacode/title20/chapter6/section20-107.1/). The Court is required to consider many of the same factors when deciding how to divide property and assign debts. You can read the equitable distribution statute here (link to: https://law.lis.virginia.gov/vacode/title20/chapter6/section20-107.3/)

After divorce, Virginia law allows either ex-spouse to ask the court to change the amount or duration of a spousal support award. To do this, a party must show two things.  First, that there has been a material change in circumstances that justifies changing or ending spousal support. Second, that the change was not reasonably expected by the parties at the time of the divorce, or an anticipated event that was important in setting the spousal support terms did not occur through no fault of the party requesting the modification.  There is one important exception:  the court cannot change the spousal support award if the parties have a written agreement (link to written separation agreement article) that makes the award non-modifiable.  

Under Virginia law (link to: https://law.lis.virginia.gov/vacode/title20/chapter6/section20-109/), the paying spouse’s attainment of full retirement age is considered a material change in circumstances for purposes of modifying spousal support. “Full retirement age” means the normal retirement age at which a person is eligible to receive full retirement benefits under the federal Social Security Act, not the “early retirement age.”

Virginia Code § 20-109(F) (link to https://law.lis.virginia.gov/vacode/title20/chapter6/section20-109/)

outlines factors the court must consider when determining whether to modify or terminate spousal support based on the paying spouse’s retirement:

1. Whether retirement was contemplated and considered by the court when spousal support was awarded;

2. Whether the retirement is mandatory or voluntary, and the related terms and conditions;

3. Whether the retirement would result in a change in either spouse’s income;

4. The age and health of the parties;

5. The duration and amount of spousal support already paid; and

6. The assets or property interest of each party from the date of the support order to the date of the modification or termination hearing.

Mandatory vs. Voluntary Retirement

Some professions require mandatory retirement at a certain age. For example, in Virginia, some law enforcement officers and judges have mandatory retirement ages. Likewise, Federal law sets mandatory retirement ages for members of the Armed Forces. It’s important to know that the court generally views mandatory and voluntary retirement differently. Since retirement usually means a drop in annual income, the courts usually place a much more importance on an expected drop in income because of mandated retirement age.  

Early Retirement Considerations

“Early retirement” is before the normal age set by the IRS and typically results in a decrease in annual income. Voluntarily retiring early is generally not recommended if you or your spouse have filed or are about to file for divorce. In general, Virginia courts will be skeptical of decisions to voluntarily retire early.  If you voluntarily retire early, the court may still use your pre-retirement income to determine spousal support.  However, the court’s approach to early retirement depends greatly on the facts and circumstances of each individual case.  

Consult with an Experienced Virginia Divorce Attorney

If you are facing a divorce, it is crucial to consult with an experienced divorce attorney before deciding whether or when to retire. An attorney can help you understand the potential consequences of retirement on your divorce proceeding and guide you through the complex legal process. The circumstances of your divorce are unique. At Bourdon & Tortolero, we take a personalized approach with every case we take on.   Contact or call us at 703-997-6152 today to learn more about what our team can do to help you.

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