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The Difference Between Remarriage and De-Facto Remarriage

DiPietro Law Group, PLLC

Upon the termination of a marriage, one spouse may have to pay spousal support to the ex-spouse as part of the divorce agreement. If circumstances change in the future, spousal support payments may be altered or cease altogether. One change of circumstances that will result in a change to spousal support is the remarriage of the spouse receiving the support. One would think that a de-facto remarriage would prompt the same changes, but in fact the results are often far different.

pencil erasing marriage on paper

According to the Virginia Code Sec. 20-109, spousal support payments may be terminated upon remarriage of the spouse receiving payment, or if the spouse receiving payment cohabitates with another person in a relationship analogous to marriage for one year or more. Based on the language in Virginia Code Sec. 20-109(D), the spouse who remarries has an affirmative duty to notify the spouse making spousal support payments of the marriage. The actual date of the marriage is when remarriage triggers a cessation of spousal support payments.

In a de-facto remarriage, the actual timing for stopping spousal support payments is often more difficult to determine. The recent case of Miller v. Green, Record No. 1993-14-3 (Va. Ct. App. 2015), involves the de-facto remarriage of the spouse receiving spousal support payments, and her ex-husband’s unilateral decision to cease making payments. According to Virginia Code Sec. 20-109(A), spousal support will end if it is determined by “clear and convincing” evidence that the spouse receiving the support has been cohabitating for one year or more in a relationship analogous to marriage (de-facto marriage). If the spouse making payments discovers such a relationship, he or she must submit a petition to the court to modify the existing payment plan. The date a copy of this petition is provided to the spouse receiving payment is the date spousal support payments will be deemed to end. The spouse receiving support has the chance to provide evidence that a previous contractual stipulation bars cessation of spousal support in this circumstance, or if a preponderance of the evidence proves a cessation would be unconscionable.

In Miller, Mr. Green found that his ex-wife had been cohabitating with another person in a relationship analogous to marriage beginning on March 29, 2012. He made his discovery in June or July 2014. Mr. Green had been paying monthly spousal support to his ex-wife, but he unilaterally decided to make the June 2014 payment his last. On July 21, 2014, he filed a motion with the court to terminate spousal support. A copy was served on his ex-wife on July 29, 2014. At trial, the court held that Mr. Green was within his rights to stop making payments without first filing a petition, and that the actual final date of spousal support was March 29, 2013, one year after Mr. Green’s ex-wife’s cohabitation began. The ex-wife appealed. The appeals court reversed the decision of the trial court, holding that the true final date for spousal support was July 29, 2014, the day Mr. Green made service of the petition to his wife. Mr. Green would have to pay spousal support for the month of July 2014.

The result in this case would obviously have turned out far different had Mr. Green’s ex-wife married after one year of cohabitation. If that had happened, spousal support would have ended immediately. Instead, the paying spouse, in this case Mr. Green, had to ascertain on his own that his ex-wife was cohabitating in a relationship analogous to marriage for over a year, and then had to provide evidence of this to the court. The extra time spent verifying the information resulted in over a year of extra spousal support.

If you are currently receiving spousal support and wish to live with a new partner, you should speak with an attorney to determine what effect this arrangement will have on any spousal support you currently receive. If you believe an ex-spouse who you are currently paying spousal support has entered a relationship analogous to marriage, you also need legal advice to ensure you pay only what is necessary in spousal support. The experienced attorneys of DiPietro Law Group are ready to help those in the Northern Virginia area with all divorce issues. Contact them today by calling (888) 530-4374 to schedule a consultation.

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