Are you paying alimony (spousal support) to your former spouse who is now living with a significant other? Are you receiving spousal support and living with a significant other? Depending on the language in your Agreement, your support amount may be terminated if it is being paid pursuant to Virginia Code Section 20-109(A). Read more about when alimony can be terminated due to cohabitation in Virginia.
Termination of Spousal Support (Alimony) Due to Former Spouse in a Relationship Analogous to Marriage
Virginia Code 20-109(A) provides that the court “shall” terminate spousal support and maintenance based upon clear and convincing evidence that the spouse receiving support has been habitually cohabitating with another person in a relationship analogous to marriage for one year or more unless (1) the spouse receiving support proves by a preponderance of the evidence that termination of such support would be unconscionable or (2) the parties contractually agreed to continue spousal support under such circumstances. Some parties refer to this Code Section in their Agreement, while others agree on different variations of the statute (such as by reducing or increasing the 12-month period).
What is Clear and Convincing Evidence?
The former spouse paying support has the burden of showing clear and convincing evidence that the other former spouse has habitually cohabitated with another person in a relationship analogous to marriage. Clear and convincing evidence means a firm belief that the facts are true. This burden of proof is stricter than a “preponderance of the evidence” but less stringent than “beyond a reasonable doubt.” Unless the parties agree to a termination of support, this determination must be made by a Judge following the filing of a Motion to Terminate Spousal Support.
What is a Relationship Analogous to Marriage?
When determining whether a relationship between the recipient of spousal support and his/her significant other is “analogous to marriage,” the court considers four non-exclusive areas: (1) a common residence, (2) intimate or romantic involvement, (3) provision of financial support, and (4) duration and continuity of the relationship and other indicia of permanency.
Examples of cases where the court did find a relationship analogous to marriage include the following situations:
(1) The former spouse lived with another individual and the two had a child together. The court also found it persuasive that the individual wrote checks from the former spouse’s accounts and that the parties used joint credit cards.
(2) The court found a relationship analogous to marriage when the former spouse and the other individual functioned as a family unit sharing meals, vacationing every year, attending each other’s family reunions, attending church together, and attending other activities for each other’s children. The former spouse and individual lived together and were financially dependent on each other with respect to childcare.
The court did not find a relationship analogous to marriage where the former spouse had a romantic and sexual relationship with another individual, but the two did not assume the duties normally associated with marriage. Although there was a fair amount of cohabitation, they did not share a common residence, and the former spouse’s children did not stay overnight at the individual’s condo. The former spouse had a key to the individual’s condo and her own parking space, but she did not keep clothes at the condo, and the individual did not keep clothes at the former spouse’s residence. The former spouse and the individual also had separate finances.
What is a Preponderance of the Evidence and When Must it be Shown?
If the court finds that a former spouse has engaged in a relationship analogous to marriage, that spouse has the burden of showing by a preponderance of the evidence, that it would be unconscionable to terminate alimony due to cohabitation in Virginia. A preponderance of the evidence is a lower burden than clear and convincing evidence and means just enough evidence to make it more likely than not that the asserted facts are true.
What Constitutes Unconscionability?
The court examines whether termination of spousal support would leave the former spouse destitute. The court considers the former spouse’s income and their ability to work. The judiciary also looks at whether the spouse cohabitated with another individual merely for necessitous circumstances and whether there is evidence of a gross disparity between the parties in conjunction with the receiving spouse’s financial need considering the paying spouse’s ability to pay.
Questions About Terminating Alimony Due to Cohabitation in Virginia
If you have questions about whether or not your spousal support/alimony could be terminated in Virginia because of cohabitation, a relationship analogous to marriage, contact the family law attorneys at Cooper Ginsberg Gray at www.cgglawyers.com or (703) 832-1421.