Sheera Herrell wins at Court of Appeals!

Posted on Dec 11, 2015 by Katie Carter

Spousal support is probably one of the most complicated areas of divorce law. Spousal support can be established in two different ways—by agreement, or ordered by a judge. Still, it’s difficult, especially in cases where spousal support is established by agreement, because (obviously) you have to get your husband to agree. Not only that, but it’s based on a complicated weighing of three different criteria (including need versus ability to pay, the statutory factors, and the length of marriage). Furthermore, there are different types of spousal support—permanent (which is less and less common these days), periodic, rehabilitative, or lump sum. For more information about the different types of spousal support and how they are awarded, click here.
Of course, as I’ve said before, permanent spousal support isn’t really permanent in the way you might think. It’s not forever and ever, without condition, no matter what happens. Quite the opposite, actually! Permanent spousal support, in most cases, is awarded (1) until either spouse dies, (2) until the recipient spouse remarries, or (3) the recipient spouse cohabitates in a relationship analogous to marriage for a period of a year or more.
What—exactly—does the law say regarding termination of spousal support? Virginia Code § 20-109(A) says:

Upon order of the court 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 a period of one ear or more commencing on or after July 1, 1997, the court shall terminate spousal support and maintenance unless (i) otherwise provided by stipulation or contract or (ii) the spouse receiving support proves by a preponderance of the evidence that termination of such support would be unconscionable.

As you can imagine, with permanent spousal support, sometimes serious drama ensues—which requires us to step in and litigate on behalf of our clients. Sometimes, our clients find, to their dismay, that their former spouses bring ridiculous actions against them later on, in an effort to terminate the awards of spousal support that they previously agreed to pay.
Recently, our own Sheera Herrell had to defend a client in the Court of Appeals of Virginia against an ex-husband who was contending that she was cohabitating with a “paramour”—and, as a result, that her spousal support should be terminated.
Under Virginia law, like we’ve already said, permanent spousal support DOES terminate when you cohabitate for a year or more. But, of course, that’s a lot of criteria that have to align in order for spousal support to terminate. A spouse receiving spousal support must (1) cohabitate (2) in a relationship analogous to marriage (3) for a period of a year or more. Our client’s ex husband had to make the argument that all 3 of these pieces of the puzzle were in existence.
In this particular case, our client wasn’t living with the man she was seeing. Although they had a child together, he didn’t sleep at our client’s home more than four times per month. He pays child support. He doesn’t receive mail at her home, and he doesn’t contribute financially towards her household bills.
The question is… Is that enough to terminate spousal support? The Court of Appeals found husband’s appeal totally without merit, and denied husband’s motion to amend spousal support.
If you see Sheera, feel free to congratulate her on her big win at the Court of Appeals of Virginia!