Spousal support is one of those things that is just not guaranteed. In fact, it’s pretty complicated. When people ask me whether they’ll receive spousal support (and, then, inevitably, if so, how much?), I want to give them as clear of an answer as possible. But the truth is anything but clear.
I’ve talked about spousal support before, including how you can tell whether it will be awarded (spoiler alert: it’s difficult to determine!) and, if so, how much you can expect to receive. All sorts of things factor into a potential spousal support award, like (1) whether you have a need, (2) whether he has an ability to pay, (3) whether the statutory factors from Virginia Code § 20-107.1 support an award of spousal support in your unique case, and (4) how long you were married.
You probably already know a little bit about the origins of spousal support, too. Originally, because women weren’t able to own land or property or even work a job on their own, they depended on their fathers and husbands for support. When a woman married, responsibility for her transferred from her father to her husband. Because she was so completely unable to fend for herself in any appreciable way (unless she became a nun or something), the husband maintained a responsibility towards her general well being, even in the event of divorce. Even though divorce was a less likely scenario in those days, it happened sometimes, and the husband was then required to pay to support the woman unless and until she remarried.
These days, women have more opportunities, and the state of the law reflects that. We see less and less permanent spousal support awarded and, of course, the most obvious change that shows the way we’re keeping up with the trends: men can now receive it equally with women, if the situation warrants it.
In the olden days, much like now, a woman’s spousal support terminated in the event that she remarried. Likewise, spousal support terminates in the event either party dies (because, obviously, there’s no way to pay support if you’re dead, along the same vein, you don’t need to receive support if you’re the one who is dead). One of the other ways the law has evolved, over time, is that spousal support now terminates when the recipient spouse (the person who is receiving the money) cohabitates in a relationship analogous to marriage for a period of one year or more.
It’s not a new thing; I don’t mean to imply that at all. It’s the way the law in the Commonwealth of Virginia has been for some time. I just mean that, originally at least (like, back in medieval England), unmarried men and women really didn’t cohabitate, so it didn’t need to be spelled out in the law. Nowadays, though, it is. In fact, it’s something that happens all the time.
The feeling of the court is, generally, that if you’re living with someone, especially if you’re behaving like husband and wife (regardless of whether you’ve formally solemnized your union by a marriage ceremony), you’re deriving some type of support from each other. Even if your new boyfriend doesn’t earn as much as your husband, simply by living together and sharing expenses, you’re deriving a benefit from the relationship. So, under the law of Virginia (at least, the way it is today), if you live with your new boyfriend for over a year, your spousal support could terminate.
Let’s talk about the law and what it means, including what you can do to avoid the restriction on cohabitation and what the means for your post divorce future life.
Cohabitation is a fancy legal word we use to describe living together as husband and wife. When we talk about whether you’re separated or not, we’re talking about cohabitation. It doesn’t really have that much to do with sex (because, believe it or not, judges have held that sex isn’t a critical component, since there are plenty of unmarried people having it and plenty of married people who are not); it’s more about how you behave and how you represent yourselves to others.
Married people, or people who are cohabitating, behave in certain ways, both inside the house and outside of it. They cook and clean for each other, shop for communal groceries, share a bedroom, and share financial responsibilities. They also tend to wear wedding rings, celebrate anniversaries, and generally present a united front. Outside of the home, they go places together, hold hands, sit together in church or other public places, and so on.
Cohabitation is all about the impression you’re giving others; if we’re talking about whether or not you and your husband are separated, we’re going to look at these types of factors. If we’re talking about whether you’re cohabitating for the purposes of terminating spousal support, we’re looking at the same factors. Basically, are you living together and behaving as though you are part of a committed relationship? Would people be led to believe that you are husband and wife?
In a relationship analogous to marriage
This goes along the same lines, and really just expands on the definition of cohabitation. For your spousal support to terminate, you’d have to be living with someone in a relationship that looks and acts a lot like a marriage. Could you be giving that impression?
Basically, here we’re making the distinction between a live in boyfriend and a roommate. A roommate, even though it may be someone of the opposite sex, isn’t necessarily a problem. (Of course, if your ex husband took you to court over it, the burden would be on you to prove that you were only roommates.) It’s when you cross the line from roommates and become partners that it becomes a problem. Simply having someone to share rent and utilities with isn’t a terminating factor as it relates to spousal support. It has to look and feel like a marriage.
For a period of one year or more
Technically speaking, the way the law has been written, you CAN cohabitate—you know, live with them and give the impression that you’re husband and wife—so long as you don’t do it for more than a year. If you do it for three hundred and sixty four days, you’re good. Three hundred and sixty six? Good bye, spousal support. You know…technically.
The problem with that is, though, that you’d have to go to court and somehow prove that the cohabitation lasted less than a year—that is, if your ex husband was alerted to the issue and brought it up to the court. It would probably be a tricky thing to prove, though, and it would almost certainly cost some serious money for you to defend yourself against your ex husband’s attack. So, even though you can technically have a live-in husband-like relationship with your boyfriend after divorce, you’re opening yourself up to spousal support related drama all the same.
So, although you’re technically safe as long as it’s less than a year, ask yourself whether it’s worth a potential fight—even if you end up winning, it can cost you several thousand dollars just to defend yourself.
Avoiding the cohabitation restriction
If you’re getting divorced, dating probably isn’t the first thing on your mind, but most people do, at some point, ask me a couple of questions about what happens after divorce. Statistically speaking, most of my clients WILL get into romantic relationships again, at some point in the future, regardless of how unlikely they tell me that would be. The younger you are, obviously, the more likely you are to become romantically involved with someone again.
Regardless of their inclination to meet someone else, many women are resistant to any kind of provision that allows their ex husband to have such a degree of control over their lives after divorce. Not being able to cohabitate is less important than the fact that he can keep you from doing so. All the while, of course, he CAN cohabitate (or remarry, or whatever), and it has absolutely no impact on him—which makes sense, too, if you think about it, because he’s not the one receiving anything, so there are no conditions (at least, not in the spousal support context) imposed upon him.
So, is it avoidable? Let’s talk about it.
Lump sum support
Spousal support that is awarded in one lump sum doesn’t have the same restrictions on it that support spread out over a different time period does. Most of the time, spousal support is awarded in a specific amount that is received each month, but it doesn’t have to be done that way if you’re both agreeable to some other configuration.
If you receive spousal support all at once, there’s no restriction on your right to cohabit (because, of course, you already have the money and aren’t depending on it being continually and regularly paid). You don’t have to pay some or all of it back because you later get involved in a romantic relationship.
So, how do you even begin to calculate lump sum support? Calculating spousal support is always a little bit difficult, because there’s no formula that we have to use. We can calculate guideline spousal support based on a formula that is binding somewhere else, but that’s really only a number that we’d use to give us an idea or a starting point.
Lump sum spousal support is more easily determined in shorter term marriages. Usually, we use the length of the marriage to give us an idea of how long spousal support will be awarded. It’s not codified anywhere, so length of marriage is not a specific point of law that affects how long you’ll receive spousal support.
Permanent spousal support, of the type we’d see in really long term marriages (20-30 years or more), is much more difficult to calculate. We’d have to approximate how long you might live to receive it (or he might live to pay it) and then figure out, based on the guidelines, what amount might be appropriate. Of course, as you can probably imagine, no husband would agree to paying it all up front unless he also received a fairly substantial discount, so we’ll take it down even more. Ultimately, it’s a point for negotiation.
In a shorter term marriage, we’re probably talking about spousal support that would be received for half the length of the marriage or less. That’s easier to calculate, because it’s a finite number of years. These are the most typical cases where I see lump sum support awarded. In a longer term marriage, it’s much more difficult to calculate, which makes it more likely that one party or the other will disagree (either it’s too much and one party is willing to take his chances, or it’s too little and the other party is afraid she’s selling herself short) and we’ll never reach an agreement. Still, it’s a possibility!
While I’m on the subject, you should probably also know that there’s one other major (major, major) advantage to lump sum spousal support: it isn’t taxable.
Normally, spousal support is taxable to you (just like it would be if it was money you earned at work), and tax deductible to your spouse. There’s an exception to that rule, though. When you receive spousal support that is less by the third year than it was the first year, you don’t have to claim it as income. It’s called “recapture.” Since lump sum support is less by the third year, it is recaptured and you don’t pay taxes on it (which means that you CAN make do on less, because normally you’d pay a portion to taxes anyway).
Lump sum spousal support is definitely a possibility and, if you’re interested, you should talk to an attorney about it. You and your attorney can discuss your options, including how much you could conceivably receive on a monthly basis versus all at once, how he could possibly pay you for it (sometimes husbands do things like refinance the house to include the extra debt or even take a disbursement on a retirement account or other investment), and your overall likelihood of success.
Spousal support is always complicated, and it usually involves a complex weighing of advantages and disadvantages before you figure out which way you’d like to go.
On Wednesday, we’ll talk about one more option for avoiding the restriction on cohabitation, so stay tuned. For more information, to schedule a consultation with one of our licensed and experienced Virginia divorce attorneys, give our office a call at (757) 425-5200.