Virginia Same-Sex Couples Cohabitation, Termination Of Spousal Support

In Virginia, there are only a handful of circumstances under which alimony or spousal support may be terminated or cut-off. Section 20-109(A) of the Virginia Code states that one of those ways is to show 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. (Intentionally emphasized).

Given that the statute explicitly states “person” and not “member of the opposite sex,” coupled with the legality of same-sex marriage in Virginia and the rest of the country for over a year, one would think the law clearly applies to opposite- and same-sex cohabitation living arrangements alike.

However, as I reported in a blog post last year, the Virginia Court of Appeals determined in Luttrell v. Cucco that “cohabitation” only applied to opposite-sex couples. In that case, a divorcee involved in a same-sex relationship lived with her partner. When her former spouse sought to terminate his spousal support obligation, the Court of Appeals agreed with the trial court that the former husband had to continue making alimony payments to his ex-wife. The courts’ conclusions were based on the notion that a relationship “like a marriage” only applied to opposite-sex couples.

This year, the Virginia Supreme Court overturned the Luttrell decision. Emphasizing the statute’s gender neutral reference to a “person,” Virginia’s highest court stated that the purpose of the statute is to prevent a spouse who has entered a committed and financially interdependent relationship from collecting a windfall from her former spouse. One of the overarching goals of alimony orders is to maintain (to the extent possible) the former couples’ post-separation lifestyle. If a spouse is now being supported or helped by a new companion, regardless of gender, then there is no need for the support payments to continue.

If you are considering filing for a modification of alimony based on the cohabitation of your ex-spouse, or have any other family law matter, you should hire an experienced family law attorney. The qualified attorneys at the DiPietro Family Law Group have decades of experience handling all types of alimony cases and other family law issues in jurisdictions across Northern Virginia, Maryland and Washington, DC.