How does living on credit cards affect a wife’s right to receive spousal support?
In an unpublished opinion, the Virginia Court of Appeals affirmed a Circuit Court judge’s award of fifty percent (50%) of a husband’s net military retirement pay and spousal support where the wife was living on credit cards, social security, and food stamps. Darley v. Darley, No. 1216-09-4, October 6, 2009. Although neither party had filed bankruptcy, the case is noteworthy as it addresses a common situation in both bankruptcy cases and divorce cases: a party living on debt instead of earned income.
The wife had obtained a spousal support order from the Juvenile and Domestic Relations District Court. The husband obtained a divorce in Panama and filed a complaint for affirmation in a Virginia Circuit Court of the divorce from a foreign country, but did not appear to testify in the case. The wife lost her job in April 2008 and was unemployed at the time of the evidentiary hearing in Virginia. The wife’s income and expense statement showed a monthly deficit of $2,000. The wife was living off credit cards, social security, food stamps, and the spousal support from the Juvenile and Domestic Relations District Court order.
In the equitable distribution portion of its decision, the Circuit Court awarded to the wife, fifty percent (50%) of husband’s military retirement pay, even though there was no evidence that the husband received income from any other source. The court pointed out that equitable distribution is different from support and is based on the accrued rights of the wife in the distributed property, as distinct from the current financial situation of the husband and wife.
Nevertheless, the income from the distribution of his pension could be properly considered in determining the husband’s support obligation to his wife. The fact that wife had a monthly deficit and was living off credit cards demonstrated her need for support, the first step in obtaining spousal support in Virginia, with the second step being the other spouse’s ability to pay support. The court found that the award of spousal support to the wife did not exceed her standard of living established during the marriage.
You should consult with your Virginia bankruptcy or divorce lawyer to discuss the application of the law to the facts of your particular situation.