A Fairfax Circuit Court judge has ruled that modification of spousal support, under a Property Settlement Agreement’s provision for a reservation of jurisdiction to do so, does not require a showing of a change of circumstances. Jurczuk v. Sessions, 6/11/19, CL2009-7181 and CL-2009-15967. Va. Lawyers Weekly 6/24/19, p. 8. This is not an appellate decision and is not even binding on future rulings of this 15-judge circuit court in other cases, but it is important for people to know about it as it could affect the negotiation and wording of separation agreements and divorce orders. In the judge’s view, the various “change of circumstances” thresholds for alimony modification under different parts of Code §20-109 do not apply when there is a “reservation of jurisdiction” to award or modify alimony. It reasons that the statutes authorizing modification after a change of circumstances grant new jurisdiction to reopen an issue that has been fully concluded, but a reservation leaves the issue not finally concluded. “The legislative intent is thus clear that ‘reservations’ are not subject to the requirement of a ‘material change in circumstances.’”
When facing this argument in other cases, it may help to point out the context in which the legislature decided to allow reservations. Before it did so, alimony set by a separation agreement could never be modified, while alimony set in a contested trial could always be modified based on a change of circumstances.
If this judge’s view were widely adopted, it would be especially transformative because of the doctrine that it is always error not to grant a reservation to either party, which means that if a party insists on a reservation in negotiation, they get it, or get to trade something for it. It becomes a much more valuable bargaining chip if it is a license to reopen the alimony issue at any time. This will also make potential payors much less willing to agree to reservations, though. People who intend them to only be available after a change of circumstances will spell that out in their agreements; but judges in the future may or may not honor such restrictions.