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Same-Sex Cohabitation Found Not to Fit Definition of “Cohabit” Pursuant to Va. Code Sec. 20-109(A)

Virginia Code Sec. 20-109(A) provides for the termination of a spousal support obligation “based upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more.” In Luttrell v. Cocco, the Virginia Court of Appeals addressed the issue of how 20-109(A) would apply to same-sex couples. There, Husband sought to modify his support obligation to his former Wife based upon her cohabitation and engagement to another woman for at least one year. The Court of Appeals construed the cohabitation statute not to apply to the same-sex couple and affirmed the denial of Husband’s motion to modify spousal support. This is a decision that confounds the mind in light of the 2012 Court of Appeals decision in Brennan v. Albertson, where the Court upheld a termination of spousal support to an ex-wife who was living with another women in a platonic relationship. The difference between the two opinions is that the issue of whether a same-sex couple could “cohabit” was not before the Court in Brennan, because in that case the two females were not romantically involved but did consider the relationship as permanent or indefinite. Accordingly, the Virginia Court of Appeals has permitted a husband to terminate his spousal support obligation on the basis that his ex-wife was living with a female friend, but the Virginia Court of Appeals precluded a husband from terminating his spousal support obligation where his wife was living with another woman in a romantic relationship with the intention to marry. On the face, the two opinions seem to be at odds with each other, and it seems likely that the General Assembly will need to revise Section 20-109(A) given the fact that same-sex marriage is now legal in Virginia.

Same-sex marriage became legal in Virginia when the Supreme Court of the United States refused to hear an appeal of the Fourth Circuit Court of Appeals in the case of Bostic v. Schaefer. That ruling doesn’t necessarily translate to spousal support laws in Virginia and it would seem that pursuant to the Code, at this time a spouse cannot seek to terminate their spousal support obligation to an ex-spouse based upon that ex-spouse’s cohabitation with another person of the same sex in a relationship analogous to marriage for one-year or more.

For more:

Luttrell v. Cucco, http://www.courts.state.va.us/opinions/opncavwp/1768144.pdf

Brennan v. Albertson, http://www.courts.state.va.us/opinions/opncavwp/2042114.pdf

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