Lump Sum Spousal Support: Part Two

Posted on Nov 4, 2015 by Katie Carter

On Monday, we talked about lump sum spousal support as a way to avoid the restriction on cohabitation in spousal support cases.  As you’re already aware (or you wouldn’t be here, reading this blog!), when you receive spousal support over a period of time, whether you receive it for a fixed time or permanently, your right to receive spousal support can terminate when either you or your spouse dies, the recipient spouse (I’m guessing that’s you, and I’ll write the rest of this blog as if that were true) remarries, or the recipient spouse cohabitates in a relationship analogous to marriage for a period of one year or more.
If you’re over there like, “cohabit, whaat?” or “analogous who?” you need to go back and read Monday’s blog, where I go over, in pretty painstaking detail, what each of those things mean. It’s important that you know, before you enter into any kind of agreement relating to spousal support, because you’ll need to know what restrictions you have.
Unfortunately, you receiving spousal support DOES mean that you’re subjected to some conditions and restrictions, like the ability to remarry and live with someone after your divorce. You probably think that you should be free to do whatever you want post-divorce and, for the most part, you are. If, however, you’re receiving spousal support, or would like to be, you may find that there are some fairly unwelcome conditions attached to it.
If you were thinking about remarrying or simply getting romantically involved at some distant (or, perhaps, not so distant) point in the future, you’re not alone. And if you’re wondering what you can do to get around these prohibitions, you’re not alone.
On Monday, we talked about lump sum support as a possible way to avoid the restriction on cohabitation and remarriage. Today, we’ll talk about one more option and then discuss a couple options. Like, for example, does this mean he can prevent you from ever remarrying and finding happiness ever again? (Meanwhile, of course, he continues to do exactly what he’d like with no consequences whatsoever. You don’t have to tell me; I totally get it. That’s frustrating and incredibly unfair.) So, what’s a girl to do?
You may scoff at me and say, “The LAST thing I’m thinking about now is my next relationship!” And that’s totally fine. In fact, your reaction is one I get all the time. No, really: all the time. But, the thing is, statistically speaking, you WILL remarry, or, at the very least, get into another relationship again at some point in the future. Say whatever you like (you know, about how that will never happen in a million years and that you’ve learned that lesson), but—you’re human. It happens. And, if it’s a possibility (and, trust me, it is), you should be prepared. Asking questions now can make sure you’re prepared down the road and can make the best decisions for yourself and your future possible.

So, what’s another way to avoid the cohabitation restriction?

Separation agreement disallowing termination based on cohabitation

In a separation agreement, we have a lot of freedom to write provisions the way we want; in some cases, we can even re-write the law a little bit to suit our needs. It is possible, therefore, to include a separation agreement provision that says specifically that your spousal support will not terminate on cohabitation.
Notice that I said “it’s possible.” I didn’t say “it’s probable,” or “it’s easy.” In fact, in most cases, it’s neither probable nor easy. Because, since the law is what it is, it’s only a change that we can suggest. If the other side refuses to sign our agreement with that language in it (and, most likely, they would), we have no recourse.
Let’s compare that to, for example, a fight over custody. You propose that you get primary physical custody, but he wants shared. If you don’t agree, you can go to court and let the judge decide. You could get your way or he could get his way, depending on the evidence.
It’s not that way with this kind of provision. Because the law says what it is, we can’t change it without the other party’s say so. If we go to court, the judge will uphold the law; you can bet your boots he won’t let us just re-write the statute to suit us! So, although this is an option we can explore, don’t set your hopes on it. In all likelihood, your husband (especially if he’s represented by counsel) won’t sign the agreement with the provision in it this way. But, who knows? Sometimes we get lucky.
That way, you could basically have your cake and eat it, too. You can receive spousal support, even on a monthly basis, whether permanent or for a specific period of time. You’d have to pay taxes on it, though (again, unless he agreed to NOT claim your taxes as a deduction which is also very unlikely). But you’d be able to cohabitate, if that’s what you choose, too.

Should I never get remarried, then?

I know. It’s frustrating. And it’s tempting to throw your hands in the air and exclaim that you’re doomed to never start another romantic relationship. After all, it would terminate your spousal support.
Whether you’re willing to give up your spousal support for the sake of love is something only you can answer. I’ve seen women make the decision both ways, and I can’t really advise you. In fact, my expertise stops here.
I have seen women who receive spousal support, especially when it’s permanent, and never remarry or make any big changes again because of the disruption it would cause to their income. Are they happy? Are they fulfilled? Do they feel lonely? I can’t answer those questions for you from their perspective. But it’s worth considering how you think you’d feel if you faced a life without romantic involvement.
That being said, can you afford to give up that support? It’s a pretty complex weighing of advantages and disadvantages, there’s really no doubt about it. It’s a choice you’ll have to make for yourself.
For my part, though, I hope you choose whatever brings you the most joy, fulfillment, and general happiness.

What if we just sleep over a couple of times a week, but live separately?

That’s definitely a possibility! In fact, a lot of the women with whom I speak tell me that their plan is something like that. Some of them even say that they view this as the ideal sort of relationship. You can go out, travel, and even sleep over sometimes. But you still maintain your own separate space, and can sleep sometimes, alone, in your own separate bed. It could be liberating. It could be the very recipe for success that you’ve always imagined. You time and together time, but enough of each that you’re fulfilled and happy.
It’s not for you? That’s possible, too. For some women, their religious and moral convictions won’t allow them to have that kind of relationship. And that’s fine, too. I’m not suggesting that you have to have any particular type of relationship; just trying to answer some of the more common questions I get.
Technically, according to the letter of the law, your spousal support would not terminate if you did this (of course, there’s the appeal, right?). You’d have to cohabitate for a year or more and, even if you stay two or three nights at each other’s respective homes, you’d never meet that year requirement. It’s not a year cumulatively, it’s a year consecutively. And if you’re living separately that way, it’s difficult to make an argument that you’re cohabitating. Married couples rarely live separately and, additionally, you also have the fact that you’re maintaining two separate residences in your favor. There’s less of a chance that you’re contributing together financially, so this living arrangement removes that component, too.
Still, it’s risky. Anything is risky, really. Because your husband doesn’t have to have clear and absolute proof of your cohabitation for a year or more in order to file something to try to modify support. He just has to have a reasonable belief. And, if he’s a really crummy guy, he may actually like to continue harassing you with legal action to reduce or eliminate your spousal support. Regardless of his motives, it can take time, cost serious money, and increase your stress. Will he do it? You know him better than I do.
That’s not to say that you can’t do this if you choose. In fact, according to the law, you can. And it’d probably be pretty easy to demonstrate that you’re living separately; you do, in fact, have separate bills to demonstrate that you’re maintaining separate residences. You could probably also introduce testimony of witnesses (like, for example, your neighbors) who can testify that you spend a certain number of nights per week at home. Maybe you’d even like to keep a log of when you stayed together and when you stayed separately. Regardless, the evidence is there, and you can find it. Still, that doesn’t mean that he won’t be spiteful and try to reduce or modify if he thinks he can get away with it.
I don’t tell you this to encourage you to reconsider your choices. On the contrary, I really only tell you to inform you about what the law is and what the possible consequences are. So much of what I do as a family law attorney has nothing to do with the law. When there are hurt feelings, anger, and resentment, there’s no telling what can happen. And filing a show cause or a motion is easier than actually winning it, so that’s something to remember, too. Whether eliminating support is warranted by the facts and circumstances, it’s going to be easier for your ex husband to file something than prove it and win on the motion.
Do what you want. Just be aware of potential consequences. And, if this is a course of action you’re planning on pursuing, make sure you keep as much evidence as you can to prove that you’re not actually cohabitating. It’ll be easier that way than trying to go back in time and recreate it after your ex files something in the courts.

…Even if I’m not breaking the rules, can he reduce my spousal support?

It really all depends. Spousal support is different in lots of different cases, but you’re right to ask this question.
Generally speaking, spousal support that is handled in an agreement is not modifiable, unless, of course, the agreement specifically says that it IS modifiable. If the agreement is silent (so it doesn’t say anything about future modification, it is non modifiable).
On the other hand, spousal support that is awarded by a judge is normally modifiable, unless, of course, the judge says that it is NOT modifiable. It’s pretty unusual that a judge would award non modifiable support, but it could happen.
So, to answer your question, it really does depend. If you’ve already been awarded spousal support, go back to your agreement or the court order entered by the judge. You’ll be able to tell.
Spousal support, like I’ve said about a million times before, is complicated. But with a little pre-planning and a pretty solid understanding of the law (and, sometimes, just being aware of potential consequences that could arise) can help you make the best decisions possible for yourself and your future.
If you have any questions about spousal support or need the guidance of one of our experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200.