By Irene C. Delcamp
When seeking a modification of spousal support, one goal for payor former spouses may be proving that the other party is cohabiting in a relationship analogous to a marriage for over one year. For the practitioner, this task is often daunting with a lack of direct evidence. This presumptive termination trigger of Virginia Code § 20-109 (A) (2017) has been the subject of much discussion over recent years due to changes in society’s views on marriage and relationships. The result is a broader applicability of the statute’s provisions for termination.
This article focuses on interpreting the “cohabitation,” termination provision of Virginia Code § 20-109 (A) (2017) and offers an examination of its recent treatment by the Courts. We will specifically focus on the term, “Analogous to Marriage,” and whether the gender of the people involved and the level of intimacy present in the relationship impact the applicability of the termination provision. Further, we will review the level of commitment needed to qualify as actual “cohabitation.”
- Interpreting the statute and its treatment by the court
A review of developments on the subject of, “cohabiting with a person in a relationship analogous to a marriage for more than one year,” leads us squarely to the Virginia Supreme Court case, Luttrell v. Cucco, 291 Va. 308; 784 S.E.2d 707 (2016). In Luttrell, the Supreme Court of Virginia focused on the meaning of the words, “cohabitation analogous to a marriage,” as set forth by Virginia Code § 20-109 (A) (2016) in Luttrell v. Cucco, 291 Va. 308, at 312; 784 S.E.2d 707, at 709 (2016).
After 15 years of marriage, in 2007, Mr. Luttrell and Ms. Cucco separated. Ms. Cucco filed for divorce and the parties subsequently entered into a property settlement agreement. Their Final Decree of Divorce, which the Fairfax County Circuit Court entered in 2008, affirmed, ratified, and incorporated their property settlement agreement. The agreement required Mr. Luttrell to pay spousal support to Ms. Cucco for a term of eight years. The standard termination events of Virginia Code § 20-109(A) applied because the parties’ agreement failed to explicitly name alternate termination events.
In July 2014, after approximately six years of spousal support payments to Ms. Cucco, Mr. Luttrell filed a motion to terminate spousal support in the Fairfax County Circuit Court. In the lower court, Mr. Luttrell claimed that Ms. Cucco was engaged and that she had been cohabiting with her fiancée for at least a year. Ms. Cucco acknowledged that she was engaged, but asserted that her relationship was with another woman; therefore, it was not what the Code intended as cohabitation in a relationship analogous to a marriage. Luttrell v. Cucco, Record No. 1768-14-4, 2015 Va. App. LEXIS 135 (Apr. 21, 2015). The lower court agreed with Ms. Cucco, and arrived at the conclusion that only opposite-sex couples could cohabit under § 20-109(A) – meaning that they had to have the ability to marry if they were to cohabit “analogous to a marriage.” Id.
Mr. Luttrell appealed the trial court’s ruling. The Court of Appeals examined the history of Virginia Code § 20-109.
Before 1997 Amendments: Spousal support terminates only upon the death or marriage of the spouse receiving support.
Since 1997 Amendments: The General Assembly amended the statute to permit the Court to terminate support where there is cohabitation, “in a relationship analogous to a marriage for one year or more.” Virginia Code Section 20-109(A)
The Court of Appeals, in its history lesson, believed the phrase, “in a relationship analogous to a marriage,” to be a status wherein a man and a woman live in a matter normally ‘attendant with a marital relationship.’ Luttrell v. Cucco, 2015 Va. App. LEXIS 135 (at pp 8-9)(Va. Ct. App., Apr. 21, 2015).
Mr. Luttrell appealed. In a pivotal decision, the Supreme Court of Virginia re-examined the history of § 20-109(A) and ruled on the meaning of person under § 20-109(A):
The language of 20-109.1(A) is gender neutral. The words spouse and person encompass individuals of either sex, and thus, the provision may be understood to apply to either same-sex or opposite-sex relationships. The Virginia General Assembly decided against utilizing the words “of the opposite sex.”
Luttrell v. Cucco, 291 Va. 308, at 316; 784 S.E.2d 707, at 711 (2016).
The Supreme Court noted that the General Assembly was aware of the option of including restrictions for gender, which is a addressed in jurisprudence predating the amendment to § 20-109(A).1 This deliberate choice signals the General Assembly’s intent that the word “person” includes members of either sex.
Accordingly, the Supreme Court of Virginia reversed the Court of Appeals’ decision and found the terminating event of cohabitation did exist in Ms. Cucco’s relationship with another woman.
- How much intimacy and contact is considered “cohabitating?”
The Virginia Court of Appeals held that the following factors in general are relevant to the cohabitation inquiry under § 20-109(A), Pelligrin v. Pelligrin, 31 Va. App. 753, 525 S.E.2d 611(2000.)
- Sharing a common residence.
- Intimate or romantic involvement; *Note, the Court of Appeals specifically chose not to address the issue of same-sex vs. opposite-sex relationship in Pelligrin.
- Provision of financial support.
- Duration and continuity of the relationship/other indicia of permanency.
Pelligrin v. Pelligrin, 31 Va. App. 753, 764-66, S.E2d 611, 616-17 (2000.)
In Pelligrin, the Court of Appeals ordered that a court may use its discretion in assigning weight to each factor above. For instance, to prove cohabitation, the relationship does not have to involve the sexual intimacy of factor 2, above, but must involve a generous portion of other key factors. In an unpublished opinion, the court found that the former wife was cohabiting in a relationship analogous to a marriage though sexual intimacy was not proven. See Brennan v. Albertson, Record No. 2042-11-4 (July 24, 2012.) The following factors were apparently enough to support cohabitation:
- Functioning together as a family unit.
- Routinely sharing meals.
- Vacationing together every year.
- Attending one another’s family reunions.
- Attending church together.
- Attending each other’s children’s activities
- Sharing a residence for a period of years
- Financially interdependent (specifically, with respect to funding childcare.)
- Being present at the time of the birth of the other person’s child(ren) and providing childcare from the time of the child’s birth.
Brennan v. Albertson, 2012 Va. App. LEXIS 240 (pp 3-5).
Proof of the above specific list of actions, which were traits of a relationship analogous to marriage, reduced the need for proof of sexual intimacy in Brennan. Per the court’s rulings in Pelligrin, the court has discretion to put different emphasis on each factor, depending on the circumstances of the case.
As noted by the Court of Appeals in Brennan, the concept that sexual intimacy is not required to prove that a marriage is a bona fide marriage is not new to the Virginia Supreme Court and Virginia’s lower courts. The Supreme Court of Virginia has assessed the necessity of sexual intimacy when assessing a desertion claim. Petachenko v. Petachenko, 232 Va. 296, 299, 350 S.E.2d 600, 602 (1986). There, the court ruled that the refusal of sexual intimacy or romance is not a valid basis for desertion. Likewise, sexual intimacy alone would not constitute a resumption of the marriage and end to desertion. Id. Therefore, the court has past ruled that sexual intimacy is not a distinguishing trait of a valid marriage. Therefore, it follows suit that cohabitation in a relationship analogous to a marriage would not require sexual intimacy as an absolute condition.
Now, when looking at the factors above, and assessing whether or not we have a strong case for cohabitation, it often becomes a question of “how much.” How often must two individuals spend the night together in the same residence to signal cohabitation in a relationship analogous to a marriage? In Cranwell v. Cranwell, 59 Va. App. 155; 717 S.E.2d 797 (2011) the Court of Appeals ruled that proof of the following conditions failed to establish cohabitation: a romantic involvement for a number of years, the parties’ families’ knowledge of relationship, frequent visitation even though one person lived in Virginia and the other person lived primarily in California, and maintaining separate finances. Cranwell is an example of time together being too tenuous due to distance; therefore, the court held that it was not a relationship analogous to a marriage under Virginia Code § 20- 109(A) (2017.)
The gender of the person involved in the relationship and the presence of sexual intimacy are not dispositive factors for the termination of support under § 20-10(A.) The focus by the courts instead has been the presence of a financially interdependent family unit that is intertwined in multiple areas of life. The regular interaction involved in actually sharing a household together is also still necessary.
Practice pointers for the Virginia family lawyer:
When a client hires us for the purpose of petitioning the court for his or her support payments to cease, we need to begin with examining what we can actually prove. Do we have time-stamped photos to help establish the one-year time frame? Do we have reliable witnesses who have documented their observations? Do we have sufficient evidence to demonstrate there is one household? If suit has been filed, we can subpoena DMV records and household bills. Has social media provided useful clues? These are all avenues worth pursuing in your quest to prove cohabitation in a relationship analogous to a marriage. The search for proof need not end upon realizing a same sex relationship is involved or upon realizing that the relationship involves seemingly platonic friends who live with one another. Case law prompts us to examine further.
1 The Court of Appeals examined separation agreements which were hand-crafted to expand the statute’s termination events, such as the separation agreement in Frey v. Frey, 14 Va. App. at 270, 275, 416 S.E.2d 40, at 43, which clearly stated, “cohabitation, analogous to a marriage, with another man.” Frey predated the 1997 amendment, in which the General Assembly decided against inserting additional words such as “other man,” or “opposite-sex.”
is a shareholder at Barnes & Diehl, where she has practiced family law for more than 10 years. She serves on the Domestic Relations Council of the Virginia Bar Association for her eighth consecutive year. An active member of the Chesterfield Bar Association, she currently serves on the Domestic Relations Subcommittee of the Bench Bar. She has also served on the Board of the Metropolitan Richmond Women’s Bar Association for two consecutive years (2012-2014.) She has published several pieces, to include Support for Baby Boomers, a Primer, which was published by Virginia Lawyers Weekly, and also, Is It Time For an Estate Planning Check-Up?, which as published by Chesterfield Living and West End’s Best. She has been named a Rising Star for Virginia Super Lawyers for 2009-2017. A proud Wahoo, she graduated in 2002 from the University of Virginia and in 2005 from the University of Richmond School of Law.