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Same-Sex Cohabitation Does Not Terminate Spousal Support . . . Yet

By: Adam T. Kronfeld, Esquire

On April 21, 2015, the Court of Appeals of Virginia issued a decision in the case Michael Allen Luttrell V. Samantha Mary Jo Cucco, which addressed the effect of same-sex cohabitation upon the termination of spousal support. The Luttrell decision was the first by the Court of Appeals to address this issue since its 2012 decision in Brennan v. Albertson.

Under Virginia Code § 20-109(A), where a former spouse receives spousal support (alimony), that award of spousal support will terminate "upon order of the court based upon clear and convincing evidence that the spouse receiving support has been habitually cohabitating with another person and relationship analogous to a marriage for one year or more." In the Brennan case, a three-judge panel of the Court of Appeals found that two women could "cohabit" in a relationship analogous to a marriage, and that a former wife's spousal support award would terminate in light of such cohabitation. In that case, the two women lived in the same residence, blended their finances, paid some of each other's financial obligations, took care of each other's children, went to each other's extended family events, and otherwise behaved in many ways that married persons might be expected to behave. The court thus found from all the facts that the two women were cohabiting in a relationship analogous to a marriage. The Court therefore terminated the recipient spouse's award of alimony under Virginia Code § 20-109(A).

The Court in Brennan, however, explicitly declined to address whether the Virginia Code's prohibition against same-sex marriage precluded two same-sex individuals' relationship from being "analogous" to a marriage. In Brennan, the former wife did not raise that argument at trial, and the appellate court therefore could not consider it. In the more recent Luttrell case, however, the Court of Appeals did address that issue head-on, and, in fact, ruled that two same-sex individuals cannot cohabit in a relationship "analogous to a marriage", and thus cannot satisfy the spousal support termination provision of Virginia Code § 20-109(A).

In deciding Luttrell, the Court of Appeals made what can best be described as a technical ruling, relying on legislative history and Supreme Court of Virginia precedent. In short, the Court observed that in 1992, the Supreme Court had held, in two different cases, that to "cohabit" meant "to live together in the same house as married persons live together, or any manner of husband and wife," or "a status in which a man and a woman lived together...assuming duties and obligations normally attendant with a marital relationship." Five years later, the General Assembly amended the Virginia Code and § 20-109(A) "upon order of the court based upon clear and convincing evidence that the spouse receiving support has been habitually cohabitating with another person and relationship analogous to a marriage for one year or more." Because the General Assembly is presumed to know the existing law, including Supreme Court decisions, the Court of Appeals presumed that its use of "cohabiting" in the statute imported the definition from those Supreme Court cases. On that basis, the Court of Appeals held that "cohabiting" could not be interpreted in a way that would allow two individuals of the same gender to have a "relationship analogous to a marriage."

What is most notable about Luttrell what ground it does not cover. There is no discussion whatsoever of constitutional issues, as the former husband apparently did not raise them at the trial level, nor did he try to raise them on appeal. The Court of Appeals did not consider in its ruling the 2014 Fourth Circuit Court of Appeals decision in Bostic v. Schaefer, which held that Virginia's same-sex marriage ban was unconstitutional. It follows that if Virginia cannot ban same-sex marriages, and if same-sex couples are getting married in Virginia, then a same-sex couple can cohabit in a relationship that is "analogous to a [same-sex] marriage."

Given that the constitutionality of same-sex marriage bans is currently pending in the United States Supreme Court, it is entirely likely that Luttrell will not be standing law in Virginia for very long. If the Supreme Court of Virginia finds that the Constitution guarantees same-sex marriage, then Virginia Courts will have to re-interpret cases that limit "cohabitation" to male-female relationships. However, that will no doubt take time, and in view of the fluctuating law in this area, parties and attorneys should be extraordinarily cautious in making decisions about post-divorce living arrangements for ex-spouses receiving spousal support.

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