Spousal support, or “alimony” as it is often called, can be awarded in a Virginia divorce matter in a variety of payment structures: it can be awarded in a lump sum; it can be awarded in periodic payments for a specific duration (e.g. 3 years); or it can be awarded in periodic payments for an undefined duration. When alimony is awarded in periodic payments, the person paying the alimony can generally cease paying the alimony when the other spouse remarries (unless there is an agreement to the contrary) or upon the other spouse’s death. But, based on a 1997 statute enacted by the Virginia legislature, a payer may also petition the court to have his or her spousal support obligation terminated when the receiving spouse is cohabitating with another partner. Note, however, that a person paying spousal support who believes he or she has the right to terminate spousal support must get a court order saying as much before terminating spousal support or risks violating their support obligations.
What Cohabitation Means For Purposes of a Virginia Alimony Order
Under the 1997 law, a paying spouse can attempt to terminate spousal support payments when her or she can prove to the court that “based upon clear and convincing evidence…the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more.” There are two exceptions to this rule, which are that the court will not terminate a support order in such a situation where: 1) a stipulation or contract between the ex-spouses indicates that alimony should continue despite any cohabitation, or 2) the spouse receiving support can prove by a preponderance of the evidence that termination of support would be “unconscionable.” Thus, the law tells us that a cohabitation relationship would have to be ongoing for at least a year to justify termination, so a brief dating relationship or even a couple living together for 6 months would not suffice.
Virginia courts that have analyzed the term “cohabitation” in the context of termination of spousal support have further defined the term as “a status in which a man and woman live together continuously, or with some permanency, mutually assuming duties and obligations normally attendant with a marital relationship.” The courts have also stated that, in determining whether a situation qualifies as cohabitation, they will consider factors such as a “shared residence, a degree of intimacy, some financial support, and an assumption of duties normally associated with marriage.” In the 2016 Virginia Supreme Court case of Lutrell v. Cucco, the court made clear that a post-divorce same-sex relationship can qualify as cohabitation and thus justify termination of a spousal support obligation.
Putting this all together, there is not always a clear boundary as to what constitutes cohabitation and what does not, but spouses who are on either the paying or receiving end of spousal support should take heed of the above information and do their best to understand their rights, responsibilities, and potential risks related to spousal support obligations.
Experienced Virginia Divorce Attorneys
At Kurylo Gold & Josey, PLC in Fredericksburg, Virginia, we will guide through all of your questions regarding your divorce, and help you work towards a favorable outcome in your family law matter. To schedule a consultation with one of our Virginia family law attorneys, contact Select Law Partners at 540.642.1766.
Matt Kurylo
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