Ever since the United States Supreme Court ruled in the Obergefell case, same sex couples have been recognized in the Commonwealth of Virginia. Of course, there’s definitely a difference between a decision at the Supreme Court level being more or less forced upon the states involved and a decision made by the state’s own Supreme Court. Recently, the Virginia Supreme Court heard a case on termination of spousal support that recognized same sex marriage in divorce officially for the first time.
The case came, as I already said, to the Supreme Court on an appeal to terminate an earlier award of permanent spousal support.
Permanent spousal support, as you probably already know, isn’t awarded permanently—as in, forever and ever, and that’s the end of it. It’s awarded permanently, until one of three different conditions happens: (1) either spouse dies, (2) the recipient spouse remarries, or (3) the recipient spouse cohabitates in a relationship analogous to marriage for a period of one year or more.
It’s the third condition – cohabitation – that brought this most recent case to the attention of the Supreme Court. The theory here, and with remarriage as well, is that it should cause termination of spousal support because, at that point, another person becomes responsible for the financial well being of the former spouse.
Let’s use an example here. Let’s say Regina and Aaron got married. They stayed married for nearly 25 years, during which Aaron worked outside the home and Regina stayed at home with the kids. During the divorce, Regina was awarded permanent spousal support—with, of course, the typical termination provisions. When Regina and Aaron split up, Regina eventually started a romantic relationship with Gretchen. Aaron, tired of supporting Regina when she was living with and also being supported by Gretchen (who works in her father’s company which, among other things, invented Toaster Strudel), petitions the court to terminate Regina’s award of child support.
The essential elements of a case like this make sense. Aaron believes that it’s no longer fair to continue to hold him responsible for Regina’s financial well being when she’s living with Gretchen. Presumably, because they live together, Gretchen and Regina shared joint responsibility for their own maintenance, and Aaron argues that he should be let off the hook. Aaron wants termination of spousal support, since Gretchen can now help to provide support to Regina.
When this came before the court back in 2008, the former wife testified that living with another woman shouldn’t count as cohabitation. Perhaps, at that time, she had a reasonable argument—if she and her new flame couldn’t marry and wouldn’t be recognized as a couple with the same rights as a heterosexual couple, why should they be counted as a couple for the purposes of terminating an award of spousal support? At that time, the court agreed with her.
Today, though, the court has taken Aaron’s side in the matter. As a point of law, it’s pretty interesting stuff—but, probably, the even more important part is the implication for same sex couples. Not only can they marry in Virginia but, in all other ways, they will be treated as a couple the same way any heterosexual couple would. That’s not to say that there aren’t still some gray areas; Obergefell was only recently decided, after all, and there are certainly some areas of law that will require judicial determination over time.
It’s definitely an interesting development in the law, and one we’ll certainly be following over time. As a woman hoping for a spousal support award in Virginia, it’s also useful to know—you risk termination of spousal support if you cohabitate for a period of one year or more, period.
For more information about spousal support and how it’s calculated in Virginia, click here. To get more information on attending one of our Virginia divorce seminars or to schedule an appointment with one of our licensed and experienced Virginia divorce attorneys, give our office a call at (757) 425-5200.