Though the laws vary (sometimes dramatically!) from state-to-state, the law in Virginia is that spousal support terminates in three specific circumstances: (1) the death of either party, (2) the remarriage of the recipient party, and (3) the continued cohabitation of the recipient party in a relationship analogous to marriage for a period of one year or more.
Don’t worry; I’ll break this all down for you.
Remarriage
This one is easy. If you remarry, your spousal support will terminate.
Continued Cohabitation in a Relationship Analogous to Marriage For a Period of One Year or More
This one’s wordy. But, then again, that’s a hallmark of the law.
So, basically, if you live with a romantic partner for a period of one year or more, you risk your spousal support terminating. When we mention the ‘relationship analogous to marriage’ bit, mostly what the court means is that there’s a difference between a roommate and a spouse.
A same-sex relationship could trigger the termination of your spousal support if you’re living together in a relationship that is – financially at least – mutually beneficial. If you’re sharing bank accounts and expenses and cooping childcare, well, that’s a sign that your relationship is, at least on the surface, analogous to marriage. Depending on the specific facts involved, this could, theoretically at least, terminate your award of spousal support. So, if you do live with someone – man or woman – you should live together as roommates only. You can share, say, the electric bill, but you can’t combine your income and pay mutual bills out of the same joint account.
Likewise, you can have a long-term romantic interest – as long as you don’t live together in a relationship analogous to marriage for a period of one year or more. You can have sleepovers; you can go on vacation together. You just can’t live together for more than a year. (Maybe this is ideal anyway?) If he has his own place and you have yours, there can be back and forth. I would make sure I did not receive mail at his place or anything like that; you should maintain completely separate living arrangements.
It seems unfair that spousal support would get in the way of my love life years after divorce.
But, yes, one of the things that is probably immediately apparent to you is that receiving an award of spousal support means that your ability to remarry, or even live with a future partner, will be impacted.
The theory here is that you’re entitled to the benefit of what was earned during the marriage, but if you’re deriving your support from another source – another partner – that your former partner should not continue to be responsible for your maintenance, too. It becomes – in the eyes of the law – almost like a double benefit. Even if that’s not the case – say your next partner is a much lesser earner than your current husband, or he’s also paying support to an ex spouse and can’t really support you – the law stands.
The only real way to sidestep this restriction on your future relationships is to get a lump sum award of spousal support – basically, to be paid a large number up front – but that’s incredibly rare. There’s two reasons it’s uncommon: (1) most people don’t have that kind of lump sum up front to pay, and (2) it’s difficult to calculate how much it would be, since we don’t know how long support would last, anyway. (Would he die? And, if he did, would it be sooner – or later?)
If you receive spousal support, you are likely to find that these restrictions on your future love life are unwelcome. But what can be done? After all, it’s the law.
The truth is there are very few options because it’s the law. In a negotiation, a lot of things are up for debate. Spousal support is, in fact, one of the areas of law where there’s the most room for widely different results, because the law isn’t established in black and white. We don’t have a mandatory formula that the court must follow or a particular amount or duration of support that is awarded in a case where the parties earn a certain level of income or were married for a specific period of time.
What is there, though, in black and white, is the termination language.
You can put in your agreement that spousal support will not terminate upon remarriage or cohabitation.
It’s possible that, if your husband agrees, you could put specific language in your agreement that includes spousal support surviving your remarriage or cohabitation. If he signs it, you’re golden.
If he doesn’t, though, he has you over a barrel – because the law is the law.
In a negotiation, you either reach an agreement, or you don’t. If you don’t, you go to court and the judge decides. Because the law is so clear on this point, the judge cannot enforce a different standard. She (the judge) won’t even be able to hear your argument for why you deserve to have support extend past remarriage or cohabitation because the law is the law, and she is powerless to change it.
The only way is to negotiate the agreement with those terms included. Chances are, if your husband is represented by an attorney, she (his attorney) will encourage him NOT to agree to those terms. (After all, the law is clear – he doesn’t really HAVE to agree to this.)
It also looks sort of suspicious. I mean, it’s not necessarily – you just want to move forward with your life, love included, and not be restricted by stupid, antiquated terms in your agreement that allow him to live but prevent you from doing the same. But, also in Virginia, adultery is a bar to spousal support except in cases of manifest injustice – so, if it looks like you might want this included because you already have the next Mr. in mind, well, it makes an attorney suspicious.
Maybe you don’t, but you’ll never be able to convince opposing counsel of this and, in any case, she doesn’t have much incentive to negotiate – and you don’t have much incentive to litigate – because the law is settled. If she – and therefore your husband – say no, well, then, you sort of have to accept it, unless you can find something else to trade that he wants more.
Death, remarriage, or cohabitation IS fairly restrictive. I hear that all the time! And even in the now-somewhat-rare situation where indefinite support is considered, it’s almost always subject to this specific termination language. You can argue for different terms, but he could refuse to sign. That’s probably the likely scenario.
I don’t say this to be a doomsdayer – believe me, I get no satisfaction in telling clients things they don’t want to hear – but just to help you maintain realistic expectations for the divorce process. Consider, instead, other ways of achieving this benefit. Talk to your attorney one-on-one about your unique case and the specific considerations involved.
For more information, feel free to request a free copy of our Virginia divorce book for women, visit our website at hoflaw.com, or give us a call at 757-425-5200.