Can I Get Spousal Support in a Divorce if it was Terminated During Separation?

Full question:

I Just went to circuit court in Virginia. i was receiving 2000 spousal support during or separation but the judge did not grant us a divorce and took my spousal support away. Can i request spousal support again when we do divorce?

• Category: Divorce
• Subcategory: Spousal Support
• Date: 04/07/2025
• State: Virginia

Answer:

The answer will depend on all the facts and circumstances involved, such as the reason for denying spousal support, and the terms of the separation agreement and original order. For example, if the separation agreement terms for spousal support have been fulfilled, and the agreement is merged into the divorce decree, it may be unavailable.

Collateral estoppel is the legal doctrine that holds that the determination of the facts litigated between the parties to a proceeding are binding and conclusive on those parties in any future litigation. It is also referred to as "issue preclusion". The constitutional ban on double jeopardy includes the right to plead collateral estoppel.

Under collateral estoppel, once a court has decided an issue of fact or law ncessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case. The collateral estoppel bar is inapplicable when the claimant did not have a 'full and fair opportunity to litigate' the issue decided by the other court. Thus, a claimant can file a federal suit to challenge the adequacy of state procedures. Ordinarily, collateral estoppel is an affirmative defense that must be raised by the party seeking to use it, or else it is waived.

I suggest you consult a local attorney who can review all the facts and documents involved.

Please see the following VA statutes to determine applicability:

§ 20-108.1. Determination of child or spousal support.
—

A. In any proceeding on the issue of determining spousal
support, the court shall consider all evidence presented
relevant to any issues joined in that proceeding. The
court's decision shall be rendered based upon the evidence
relevant to each individual case.

B. In any proceeding on the issue of determining child
support under this title or Title 16.1 or Title 63.2, the
court shall consider all evidence presented relevant to any
issues joined in that proceeding. The court's decision in
any such proceeding shall be rendered upon the evidence
relevant to each individual case. However, there shall be a
rebuttable presumption in any judicial or administrative
proceeding for child support, including cases involving
split custody or shared custody, that the amount of the
award which would result from the application of the
guidelines set out in § 20-108.2 is the correct amount of
child support to be awarded. Liability for support shall be
determined retroactively for the period measured from the
date that the proceeding was commenced by the filing of an
action with any court provided the complainant exercised
due diligence in the service of the respondent or, if
earlier, the date an order of the Department of Social
Services entered pursuant to Title 63.2 and directing
payment of support was delivered to the sheriff or process
server for service on the obligor.

In order to rebut the presumption, the court shall make
written findings in the order, which findings may be
incorporated by reference, that the application of such
guidelines would be unjust or inappropriate in a particular
case. The finding that rebuts the guidelines shall state
the amount of support that would have been required under
the guidelines, shall give a justification of why the order
varies from the guidelines, and shall be determined by
relevant evidence pertaining to the following factors
affecting the obligation, the ability of each party to
provide child support, and the best interests of the child:

1. Actual monetary support for other family members or
former family members;

2. Arrangements regarding custody of the children,
including the cost of visitation travel;

3. Imputed income to a party who is voluntarily unemployed
or voluntarily under-employed; provided that income may not
be imputed to the custodial parent when a child is not in
school, child care services are not available and the cost
of such child care services are not included in the
computation and provided further, that any consideration of
imputed income based on a change in a party's employment
shall be evaluated with consideration of the good faith and
reasonableness of employment decisions made by the party;

4. Debts of either party arising during the marriage for
the benefit of the child;

5. Direct payments ordered by the court for maintaining
life insurance coverage pursuant to subsection D, education
expenses, or other court-ordered direct payments for the
benefit of the child;

6. Extraordinary capital gains such as capital gains
resulting from the sale of the marital abode;

7. Any special needs of a child resulting from any
physical, emotional, or medical condition;

8. Independent financial resources of the child or
children;

9. Standard of living for the child or children established
during the marriage;

10. Earning capacity, obligations, financial resources, and
special needs of each parent;

11. Provisions made with regard to the marital property
under § 20-107.3, where said property earns income or has
an income-earning potential;

12. Tax consequences to the parties including claims for
exemptions, child tax credit, and child care credit for
dependent children;

13. A written agreement, stipulation, consent order, or
decree between the parties which includes the amount of
child support; and

14. Such other factors as are necessary to consider the
equities for the parents and children.

C. In any proceeding under this title or Title 16.1 or
Title 63.2 on the issue of determining child support, the
court shall have the authority to order either party or
both parties to provide health care coverage or cash
medical support, as defined in § 63.2-1900, or both, for
dependent children if reasonable under all the
circumstances and health care coverage for a spouse or
former spouse.

D. In any proceeding under this title, Title 16.1 or
Title 63.2 on the issue of determining child support, the
court shall have the authority to order a party to (i)
maintain any existing life insurance policy on the life of
either party provided the party so ordered has the right to
designate a beneficiary and (ii) designate a child or
children of the parties as the beneficiary of all or a
portion of such life insurance for so long as the party so
ordered has a statutory obligation to pay child support for
the child or children.

E. Except when the parties have otherwise agreed, in any
proceeding under this title, Title 16.1 or Title 63.2 on
the issue of determining child support, the court shall
have the authority to and may, in its discretion, order one
party to execute all appropriate tax forms or waivers to
grant to the other party the right to take the income tax
dependency exemption for any tax year or future years, for
any child or children of the parties for federal and state
income tax purposes.

F. Notwithstanding any other provision of law, any
amendments to this section shall not be retroactive to a
date before the effective date of the amendment, and shall
not be the basis for a material change in circumstances
upon which a modification of child support may be based.

G. Child support payments, whether current or arrears,
received by a parent for the benefit of and owed to a child
in the parent's custody, whether the payments were ordered
under this title, Title 16.1, or Title 63.2, shall not be
subject to garnishment. A depository wherein child support
payments have been deposited on behalf of and traceable to
an individual shall not be required to determine the
portion of deposits which are subject to garnishment.

§ 20-109.1. Affirmation, ratification and incorporation
by reference in decree of agreement between parties.

Any court may affirm, ratify and incorporate by reference in its decree
dissolving a marriage or decree of divorce whether from the bond of
matrimony or from bed and board, or by a separate decree prior to or
subsequent to such decree, or in a decree entered in a suit for annulment
or separate maintenance, and in a proceeding arising under subsection A 3
or L of § 16.1-241, any valid agreement between the parties, or
provisions thereof, concerning the conditions of the maintenance of the
parties, or either of them and the care, custody and maintenance of their
minor children, or establishing or imposing any other condition or
consideration, monetary or nonmonetary. Provisions in such agreements for
the modification of child support shall be valid and enforceable. Unless
otherwise provided for in such agreement or decree incorporating such
agreement, such future modifications shall not require a subsequent court
decree. This section shall be subject to the provisions of § 20-108.
Where the court affirms, ratifies and incorporates by reference in its
decree such agreement or provision thereof, it shall be deemed for all
purposes to be a term of the decree, and enforceable in the same manner as
any provision of such decree. The provisions of this section shall apply
to any decree hereinbefore or hereinafter entered affirming, ratifying
and incorporating an agreement as provided herein. Upon the death or
remarriage of the spouse receiving support, spousal support shall
terminate unless otherwise provided by stipulation or contract. In any
case where jurisdiction is obtained over a nonresident defendant by order
of publication or by acceptance of service pursuant to § 20-99.1:1, any
properly acknowledged and otherwise valid agreement entered into between
the parties may be affirmed, ratified and incorporated as provided in
this section.

§ 20-60.3. Contents of support orders. —

All orders directing the payment of spousal support where
there are minor children whom the parties have a mutual
duty to support and all orders directing the payment of
child support, including those orders confirming separation
agreements, entered on or after October 1, 1985, whether
they are original orders or modifications of existing
orders, shall contain the following:

1. Notice that support payments may be withheld as they
become due pursuant to § 20-79.1 or § 20-79.2, from income
as defined in § 63.2-1900, without further amendments of
this order or having to file an application for services
with the Department of Social Services; however, absence of
such notice in an order entered prior to July 1, 1988,
shall not bar withholding of support payments pursuant to
§ 20-79.1;

2. Notice that support payments may be withheld pursuant to
Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2 without
further amendments to the order upon application for
services with the Department of Social Services; however,
absence of such notice in an order entered prior to
July 1, 1988, shall not bar withholding of support payments
pursuant to Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2;

3. The name, date of birth, and last four digits of the
social security number of each child to whom a duty of
support is then owed by the parent;

4. If known, the name, date of birth, and last four digits
of the social security number of each parent of the child
and, unless otherwise ordered, each parent's residential
and, if different, mailing address, residential and
employer telephone number, driver's license number, and the
name and address of his or her employer; however, when a
protective order has been issued or the court otherwise
finds reason to believe that a party is at risk of physical
or emotional harm from the other party, information other
than the name of the party at risk shall not be included in
the order;

5. Notice that, pursuant to § 20-124.2, support will
continue to be paid for any child over the age of 18 who
is (i) a full-time high school student, (ii) not
self-supporting, and (iii) living in the home of the party
seeking or receiving child support until such child reaches
the age of 19 or graduates from high school, whichever
occurs first, and that the court may also order the
continuation of support for any child over the age of 18
who is (a) severely and permanently mentally or physically
disabled, (b) unable to live independently and support
himself, and (c) residing in the home of the parent seeking
or receiving child support;

6. On and after July 1, 1994, notice that a petition may be
filed for suspension of any license, certificate,
registration or other authorization to engage in a
profession, trade, business, occupation, or recreational
activity issued by the Commonwealth to a parent as provided
in § 63.2-1937 upon a delinquency for a period of 90 days
or more or in an amount of $5,000 or more. The order shall
indicate whether either or both parents currently hold such
an authorization and, if so, the type of authorization
held;

7. The monthly amount of support and the effective date of
the order. In proceedings on initial petitions, the
effective date shall be the date of filing of the petition;
in modification proceedings, the effective date may be the
date of notice to the responding party. The first monthly
payment shall be due on the first day of the month
following the hearing date and on the first day of each
month thereafter. In addition, an amount shall be assessed
for any full and partial months between the effective date
of the order and the date that the first monthly payment is
due. The assessment for the initial partial month shall be
prorated from the effective date through the end of that
month, based on the current monthly obligation;

8. a. An order for health care coverage, including the
health insurance policy information, for dependent children
pursuant to §§ 20-108.1 and 20-108.2 if available at
reasonable cost as defined in § 63.2-1900, or a written
statement that health care coverage is not available at a
reasonable cost as defined in such section, and a statement
as to whether there is an order for health care coverage
for a spouse or former spouse; and

b. A statement as to whether cash medical support, as
defined in § 63.2-1900, is to be paid by or reimbursed to a
party pursuant to subsections D and G of § 20-108.2, and if
such expenses are ordered, then the provisions governing
how such payment is to be made;

9. If support arrearages exist, (i) to whom an arrearage is
owed and the amount of the arrearage, (ii) the period of
time for which such arrearage is calculated, and (iii) a
direction that all payments are to be credited to current
support obligations first, with any payment in excess of
the current obligation applied to arrearages;

10. If child support payments are ordered to be paid
through the Department of Social Services or directly to
the obligee, and unless the court for good cause shown
orders otherwise, the parties shall give each other and the
court and, when payments are to be made through the
Department, the Department of Social Services at least 30
days' written notice, in advance, of any change of address
and any change of telephone number within 30 days after the
change;

11. If child support payments are ordered to be paid
through the Department of Social Services, a provision
requiring an obligor to keep the Department of Social
Services informed of the name, address and telephone number
of his current employer, or if payments are ordered to be
paid directly to the obligee, a provision requiring an
obligor to keep the court informed of the name, address and
telephone number of his current employer;

12. If child support payments are ordered to be paid
through the Department of Social Services, a provision
requiring the party obligated to provide health care
coverage to keep the Department of Social Services informed
of any changes in the availability of the health care
coverage for the minor child or children, or if payments
are ordered to be paid directly to the obligee, a provision
requiring the party obligated to provide health care
coverage to keep the other party informed of any changes in
the availability of the health care coverage for the minor
child or children;

13. The separate amounts due to each person under the
order, unless the court specifically orders a unitary award
of child and spousal support due or the order affirms a
separation agreement containing provision for such unitary
award;

14. Notice that in determination of a support obligation,
the support obligation as it becomes due and unpaid creates
a judgment by operation of law. The order shall also
provide, pursuant to § 20-78.2, for interest on the
arrearage at the judgment rate as established by
§ 6.1-330.54 unless the obligee, in a writing submitted to
the court, waives the collection of interest;

15. Notice that on and after July 1, 1994, the Department
of Social Services may, pursuant to Chapter 19 (§ 63.2-1900
et seq.) of Title 63.2 and in accordance with §§ 20-108.2
and 63.2-1921, initiate a review of the amount of support
ordered by any court;

16. A statement that if any arrearages for child support,
including interest or fees, exist at the time the youngest
child included in the order emancipates, payments shall
continue in the total amount due (current support plus
amount applied toward arrearages) at the time of
emancipation until all arrearages are paid; and

17. Notice that, in cases enforced by the Department of
Social Services, the Department of Motor Vehicles may
suspend or refuse to renew the driver's license of any
person upon receipt of notice from the Department of Social
Services that the person (i) is delinquent in the payment
of child support by 90 days or in an amount of $5,000 or
more or (ii) has failed to comply with a subpoena, summons,
or warrant relating to paternity or child support
proceedings.

The provisions of this section shall not apply to divorce
decrees where there are no minor children whom the parties
have a mutual duty to support.