In the D.C. metro area, one would have to be living under a proverbial rock to not know of the recent reduction in federal workers by the Department of Government Efficiency (“DOGE”) across a myriad of federal agencies. Indeed, as of April 1, 2025, The New York Times confirms at least 56,000 confirmed involuntary cuts (although a fraction of those have been reinstated due to court order), approximately 75,000 federal employees have taken buyouts, and at least an additional 170,000 federal jobs are still planned to be cut. It is an extraordinary time for the federal workforce and their families. It is also a confusing and bewildering time for family law clients, their spouses, and ex-spouses trying to navigate the impact of this unprecedented workforce reduction on familial support obligations, either child or spousal.
The basic, bottom-line concept a client needs to understand and appreciate is this: normally, actual income (and in the context of spousal support, sometimes financial resources) will be used to fashion a support obligation. However, if the Court believes a party (either payor or recipient) is voluntarily unemployed or under-employed, the Court can (and often will) impute income to that individual. This guides not only how the Court determines this issue, but also how parties (and their lawyers) negotiate these issues. In the context of federal employment, should a federal employee be a member of the involuntarily terminated 56,000 mentioned above, their actual income post-termination should be considered (this may include severance, unemployment benefits, non-employment income, etc., or none, if post-termination income is zero). However, if a party voluntarily takes a buyout (presumably because the work environment is toxic or if they anticipate that down the road they might lose their job), they risk a Court (or the other side) holding them to their pre-buyout income level for purposes of support.
From those near (or at) retirement to younger workers terminated or pondering a buyout, and everyone in between, the federal employee (and spouse or ex-spouse) needs to understand and appreciate these distinctions under Virginia law.
As alluded to above, “one who seeks spousal support is obligated to earn as much as he or she reasonably can to reduce the amount of the support need.”[1] This approach precludes the party receiving support from working less (or not at all) so as to receive more support from the paying party.
The individual seeking to impute income has the burden of proving that the opposing party was voluntarily unemployed or underemployed.[2] The party seeking imputation can make their argument by “producing evidence of a higher-paying former job or by showing that more lucrative work was currently available.”[3]
The person who does not want income imputed must show that their unemployment was not due to their own actions or neglect.[4] A common scenario to occur is when one person makes a career change and engages in higher-risk employment. If that risk does not pay off and the person does not achieve the income gains they had hoped for, the court will find that their employment choices (and accompanying risks) were voluntary, and will impute income accordingly.[5] Between the person deciding to pursue the riskier employment and the people to whom the employee owes support, it would be unfair to pass on the risk to the support recipients.[6] In the context of a federal buyout, the voluntary choice to take a “fork in the road” package, even if not in favor of a riskier position, may trigger an imputation of income, even if the voluntary change was made in good faith.[7]
A voluntary change in employment is one “either purposely taken with the desire to evade one’s support obligation, or … evidence[s] a careless disregard for one’s support obligations….”[8] Such voluntary changes encompass wrongdoing or personal fault, as well.[9]
A person’s employment decisions must be assessed carefully, however. Because the term “voluntary unemployment” operates as a term of art in Virginia courts, it can be the case that what seemed to be an employee’s voluntary action (to take less work or leave a position) may in fact be considered an involuntary action for support award purposes.[10] For example, in Nielsen v. Nielsen, the court found that while husband “voluntarily” left his employment, he was functionally forced out and left with no viable alternative other than to leave his position.[11] The court deemed this exit an involuntary act, and declined to impute income to husband as a result.[12] In the context of a buyout, the critical issue will be to what degree the employee in question was “functionally forced out.”
In the context of spousal support, the court will consider all support factors when imputing income, “including the ‘standard of living established during the marriage,’ the ‘duration of the marriage,’ and the positive and negative ‘contributions, monetary and nonmonetary, of each party to the well-being of the family.’”[13]
Most importantly, the court weighs heavily three specific factors when determining imputation:
- Code § 20-107.1(E)(9), “‘earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;'”
- Code § 20-107.1(E)(10), “‘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;'” and
- Code § 20-107.1(E)(11), “‘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.'”[14]
The court’s decision in imputation cases will always be fact specific,[15] and depend on “current circumstances and what the circumstances will be within the immediate or reasonably foreseeable future, not to what may happen in the future.'”[16] Put another way, “courts may consider reasonably foreseeable events,” but they “may not base an award on speculation of future events.”[17] Applying this test to the federal employment buyout, the court’s decision will come down to whether or not the federal employee’s involuntary termination is reasonably foreseeable or simply speculation based on future events.
Modification and Retirement
For employees at or nearing retirement, the inquiry changes slightly, although the voluntary or involuntary nature of their decision is still critical. Because the court will presume that its prior orders continue to be valid, it will not modify a support award until it determines that there has been a material change in the parties’ circumstances (since the initial award of support).[18] If there has been a material change, the court will then assess whether the changes are sufficient to justify modifying the support award.[19]
In Virginia, “full retirement age” is the “normal retirement age at which a person is eligible to receive full retirement benefits under the federal Social Security Act[.].[20] For most Virginians – those born after 1960 – they reach retirement at 67 years of age.[21] Attaining this age automatically creates a material change in circumstances, after which the court will determine whether the facts support modifying the support award.[22]
The court has stated that “a spousal support award should not operate to force persons who have reached usual retirement age to continue working.”[23] However, reaching retirement age does not mean that the retiring spouse will not have to pay (or will be allowed to stop paying) support. Rather, reaching retirement age only provides the material change in circumstances after which the court makes its support decision; the court may still impute income based on the facts of the case.
Yet because retirement is such a major life change, the court will consider six main factors when determining whether retirement will inform a modification of the support award:
- Whether retirement was contemplated by the court and specifically considered by the court when the spousal support was awarded;
- Whether the retirement is mandatory or voluntary, and the terms and conditions related to such retirement;
- Whether the retirement would result in a change in the income of either the payor or the payee spouse;
- The age and health of the parties;
- The duration and amount of spousal support already paid; and
- The assets or property interest of each of the parties during the period from the date of the support order and up to the date of the hearing on modification or termination.[24]
If the court finds that modification is warranted, it can decline to impute income and may modify or completely terminate the support award. If the parties, when married, made decisions together (or failed to do so, together), the court will take these actions into account, and any court ruling must explain the reasoning for imputation.[25]
Conclusion
Imputing income in Virginia is a fact-intensive endeavor that requires a review of all available factors, including the voluntariness of recent employment decisions or actions. In the context of federal employment, an involuntary termination will be considered under a different lens than a voluntary “fork in the road” buyout. In many circumstances, these authors fear that the latter could give rise, under certain circumstances, to an imputation of income for the federal employee. Such parties (and their spouses and ex-spouses) should consult counsel before making such critical decisions.
If you have questions about child or spousal support, please contact Christian Lapham at (703) 525-4000 or clapham@beankinney.com or Daniel Perszyk at (703) 525-4000 or dperszyk@beankinney.com.
This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.
[1] Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990).
[2] deCamp v. deCamp, 64 Va. App. 137, 150, 765 S.E.2d 863, 870 (2014).
[3] Albert v. Albert, 38 Va. App. 284, 295, 563 S.E.2d 389, 395 (2002).
[4] Edwards v. Lowry, 232 Va. 110, 112-13, 348 S.E.2d 259, 261 (1986).
[5] See Manson v. Manson, 2013 Va. App. LEXIS 395 at *9-13 (Va. Ct. App. Dec. 27, 2013).
[6] See Antonelli v. Antonelli, 242 Va. 152, 156, 409 S.E.2d 117, 119 (1991).
[7] See Stubblebine v. Stubblebine, 22 Va. App. 703, 708, 473 S.E.2d 72, 74 (1996) (en banc).
[8] Mansfield v. Taylor, 24 Va. App. 108, 114, 480 S.E.2d 752, 755 (1997).
[9] See Edwards, 232 Va. 110.
[10] See Nielsen v. Nielsen, 73 Va. App. 370, 860 S.E.2d 397 (2021).
[11] Nielsen at 384.
[12] Nielsen at 384.
[13] Brandau v. Brandau, 52 Va. App. 632, 638-39, 666 S.E.2d 532, 536 (2008) (emphasis added) (quoting Code § 20-107.1(E)(2), (3), (6)).
[14] deCamp 64 Va. App. at 150 (quoting Va. Code § 20-107.1(E)(9), (10), (11)).
[15] Stubblebine, 22 Va. App. at 709.
[16] deCamp, 64 Va. App. at 150-51.
[17] Rogers v. Rogers, 51 Va. App. 261, 270, 656 S.E.2d 436, 440 (2008).
[18] Va. Code § 20-109.
[19] Va. Code § 20-109.
[20] Va. Code § 20-109 (E)
[21] 42 U.S.C. § 416(l).
[22] Va. Code § 20-109 (E).
[23] Stubblebine, 22 Va. App. At 709; Baker v. Baker, 2024 Va. App. LEXIS 126, *7-8.
[24] Baker at *7; Va. Code § 20-109(F).
[25] Szawronski v. Szawronski, 2019 Va. App. LEXIS 176, *11.
