Cohabitating With A Person Of The Same Sex After Divorce Can Terminate Your Alimony
Virginia Code Section 20-109 states that spousal support/alimony shall terminate if the recipient spouse “has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more.” The terms “cohabiting” and “analogous to a marriage” mean more than simply living in the same house, and that will be the subject of another blog post. The recent Virginia Supreme Court case of Luttrell v. Cucco held that an ex-spouse who enters a committed relationship with someone of the same sex can lose spousal support payments under Virginia law. The decision means that a former husband who signed a Property Settlement Agreement agreeing to pay his wife eight years of alimony can stop making payments because the ex-wife had been “cohabiting continuously” with another woman. At the trial court, the ex-wife freely admitted that she was engaged to be married to a woman and did not dispute the factual allegations, but rather made the legal argument that Code Section 20-109 only applied to persons of opposite sexes cohabitating. The Fairfax Circuit Court refused to cut off the ex-wife’s support payments, and husband appealed. The Court of Appeals looked to earlier case law to interpret the scope of the term “cohabiting” as used in the statute and found that that term did not encompass same-sex relationships.
The Court of Appeals determined that “analogous to a marriage” meant “a man and a woman” living together continuously. The Virginia Supreme Court reversed and observed that the statutory language is gender neutral, using the words “spouse” and “person” rather than “person of the opposite sex.” That interpretation reflects the purpose of the support statute in attempting to maintain the relative standing of the parties at the time of the initial award of support. The Court stated that “Code § 20-109(A) recognizes that an individual who has entered a committed, financially interdependent relationship with a third person is no longer dependent upon his or her ex-spouse in the same manner as when the agreement was executed. Therefore, it provides a mechanism designed to prevent one former spouse from obtaining a windfall at the expense of the other after the recipient has entered such a relationship.”