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Cohabitation clause not ’self-executing’

“Cohabitation clauses” commonly show up in divorcing couples’ PSAs. Nobody wants to keep paying support to a spouse who has moved on and moved in with somebody else.

But such cohabitation clauses are not necessarily “self-executing,” as the Court of Appeals reminds us today in Stroud v. Stroud.

The property settlement agreement between Joseph and Debra Stroud said wife’s spousal support would end upon death, wife’s remarriage or her “cohabitation with any person … in a situation analogous to marriage.” Husband cut off his $4,000 monthly support payments when wife began living with another woman. A Fairfax trial court said support should continue, but the Court of Appeals reversed.

Husband then went back to the trial court to request attorney’s fees under the PSA, saying he prevailed on appeal.

But the PSA’s cohabitation clause was not “self-executing,” according to the Court of Appeals. Husband was not entitled to unilaterally terminate support without a proper court order.

A PSA provision can be self-executing “only when the triggering event is empirically determined,” wrote Court of Appeals Judge Robert P. Frank.

Getting older, then dying. OK, we see how these “life events” can qualify as “empirically determined triggering events.” Emphasizing that today’s decision did not provide “an exclusive list of empirically determined triggering events,” the appellate court left the door open for future fights.

Deborah Elkins

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