Spousal support is a bit of a bear. It’s not all that predictable – whether we’re talking about how much spousal support you might expect to receive, or how long you’ll receive it. Whether your spousal support will end is often another one of those gray areas, and it can be difficult to tell – difficult, too, to determine how to live your life post divorce so that the question of whether you’ll continue to receive a permanent spousal support award (if indeed you were able to get permanent support awarded) is more or less certain.
How long will I receive spousal support?
People ask us all the time how long they can expect to receive spousal support, and the truth is that, for most people, if they qualify to receive spousal support at all (for more information on qualification to receive spousal support, click here), it’ll be for a defined duration.
That is to say, it’ll be for a specific period of time – like two, five, ten, or whatever years. Often, we see that specific defined duration relate to the period of marriage; it’ll occur for the length or half the length of the marriage, for example. In those situations, it’s not so much a question of when it will end. It will end when the time period runs out. It’ll end after two, five, ten, or whatever years. There’s not really any question—really, it’s pretty clear.
When is spousal support modifiable?
Sometimes, spousal support is more definite than others! I know that probably seems shocking, but it’s true. Typically, spousal support awarded by a judge, in a courtroom, is modifiable (unless, for whatever reason, the judge orders that it is non modifiable). If the judge doesn’t say whether it’s modifiable or not modifiable, it’s modifiable.
On the other hand, spousal support agreed to by the parties in a separation agreement is non modifiable (unless, for whatever reason, the agreement says that it is modifiable). If the agreement doesn’t say whether it’s modifiable or not modifiable, it’s not modifiable.
Do I want modifiable or non modifiable spousal support?
That depends. It can be modifiable, if it’s modifiable, based on your husband getting a raise. So, your spousal support could go up. If, though, he’s fired, or gets demoted, or retires and, for whatever reason, starts earning less, your spousal support could go down. Me, personally? I like non modifiable. I like knowing what I have to work with on a monthly basis. It’s a gamble the other way, and I’m not the gambling kind.
How does permanent spousal support work?
Permanent spousal support isn’t forever and ever, and there’s nothing anybody can do about it. Not at all! In fact, there are LOTS of ways that permanent spousal support can end. Permanent spousal support ends (1) on the death of either party (sorry to get morbid on you there), (2) the remarriage of the recipient party, or (3) the cohabitation in a relationship analogous to marriage for a period of a year or more of the recipient party.
So, if you receive an award of permanent spousal support, you’ll continue to receive spousal support until one of those events takes place. The first two, death and remarriage, are pretty clear cut. If someone dies, or if you get remarried, spousal support will stop. If he dies first, his estate won’t have to continue paying spousal support to you (that’s why we often include provisions that, while he has a spousal support obligation, he’ll maintain a life insurance policy with you listed as beneficiary). If you remarry, you’re done, too.
Why? Well, spousal support comes from the old theory that a husband had a duty to financially support a wife. If he set her aside, for whatever reason, he was obligated to continue to support her. If she remarried, though, someone else would then be responsible for her maintenance and support, absolving husband number one of that particular burden. At that point, husband number two becomes responsible for her.
Of course, some of that is outdated. In fact, that’s why we call it spousal support now, and not alimony. Alimony, it was presumed, was paid to the wife by the husband. Spousal support doesn’t make that assumption. It can be paid for by either the husband or the wife, and, obviously, received by either the husband or the wife.
When does spousal support terminate because of cohabitation?
That’s a little trickier! So, technically, cohabitation happens when you live with someone and behave like husband and wife. It’s about how you behave inside the home (shopping and cooking and bill paying and cleaning and doing laundry for each other), and how you behave outside the home (representing yourself as a couple, going out to celebrate anniversaries, attending church together, etc). It’s not so much a question of whether you’ve gotten married and formally recognized your relationship, it’s a question of how other people perceive you, and whether your relationship has risen to an appropriate level of seriousness.
We’re not talking about roommates here, either. We’re talking about a long term, committed relationship where the two of you share financial obligations and essentially face the challenges of daily life together. But the rest is less certain. So, technically, spousal support should terminate because you have a live-in partner. Technically, if you maintain separate residences, receive mail at different locations, etc, you’re not cohabitating.
But…what would a judge say? It’s less certain. In fact, we have a case like that right now, where the parties always sleep together, but each maintains his or her separate residence. Maybe for most people the distinction doesn’t matter, because most can’t afford to maintain two separate homes. But, still, for many women, there is some question – if they never sleep separately, are they cohabitating?
I don’t know of any exact cases on point, and the truth is that regardless of what the law says, an ex husband can still drag a support receiving wife through a very extensive, expensive litigation process if he chooses to. We can ask for attorney’s fees, but whether or not they’re awarded is up to the judge. If you live together for more than a year, your spousal support will terminate, assuming that your ex husband is aware of your cohabitation and willing and able to bring another suit to terminate it. If not, though, but you’re in a long term committed relationship and you’re doing some things that cohabitating partners would do, a judge might read more into that than you expect.
So, what should you do? There’s not much you can do to be absolutely sure your ex will never try to terminate your award of support. In fact, if there’s a chance it can be modified, chances are pretty good that he’ll be looking for you to do one of the things that terminates support. If you’re single and living on your own, you’re fine – but if you’re in a relationship, you’ll want to take care that you don’t look like you’re cohabitating. Sleep separately some. Pay your own way, whether at dinner or on vacation. When you go back and forth to each other’s places, take an overnight bag. Don’t have a drawer full of belongings at his house, and don’t reserve him closet space at your house. Take out your own garbage. Wash your own dishes. Probably don’t get a dog, because if he goes back and forth with you to both houses, that’s a strange link. A cat might be okay, because it would be independent enough to stay along behind without going back and forth to both houses.
It may seem silly and hypersensitive, but these were literally the things we were discussing the other day when we talked about this current spousal support case and whether support would terminate. Be careful. If you need your spousal support, make sure you plan ways to make sure you’re not doing anything that would cause it to terminate later on. There’s no question that it’s annoying to take this kind of precaution, but it’s what you’ll have to do to make sure you’re above the judge’s scrutiny. For more information about spousal support or to discuss your case with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.