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Redefining Cohabitation In Virginia

Virginia CodeThe Virginia Court of Appeals has taken a major step in redefining cohabitation “in a relationship analogous to a marriage” under Virginia Code 20-109(A).

Virginia Code 20-109(A) provides for termination of spousal support “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.” That Code provision directs courts to terminate spousal support “unless (i) otherwise provided by stipulation or contract or (ii) the spouse receiving support proves by a preponderance of the evidence that termination of such support would be unconscionable.”

Clients frequently ask what “cohabiting with another person in a relationship analogous to a marriage” means, and how to either avoid such a situation or prove that one exists. Virginia Code 20-109(A) does not provide a definition, so attorneys are left answering those questions based on Virginia court precedents. Previous case law established factors relevant to the cohabitation inquiry to include intimate or romantic involvement, the provision of financial support, the duration and continuity of the relationship and other indicia of permanency.

For years, most attorneys have specifically advised that a romantic relationship, which may or may not include sex, is a necessary component of cohabitation in a relationship analogous to marriage. However, in an unpublished opinion in Brennan v. Albertson, the Virginia Court of Appeals directly contradicts that notion.

In the Brennan case, the Circuit Court of Fairfax County found that Ms. Brennan was habitually cohabiting with another person in a relationship analogous to marriage and, therefore, granted her former husband’s motion to terminate spousal support. The Circuit Court heard evidence that Ms. Brennan and Ms. Lisa Baker met and became close friends. Baker signed a lease and moved in with Brennan. When Brennan purchased a new home she made Baker a joint tenant with the right of survivorship through a deed of gift. Once moving into the home, Baker assumed responsibility for the monthly mortgage payment. The parties shared other household expenses, but maintained separate bank, credit, and investment accounts.

Brennan and Baker dined together within the home, socialized in the same circles, attended each other’s family functions, and their children became close. Brennan and Baker both denied having a romantic relationship and defined their relationship as being like that of sisters. The Circuit Court concluded that there was no evidence of a sexual relationship but that Brennan and Baker were “intimately intertwined,” and that there had been cohabitation analogous to marriage.

In affirming the Circuit Court, the majority of the Court of Appeals rejected Brennan’s argument that without romance or sexual intimacy her relationship with Baker cannot be a relationship “analogous to a marriage.” After the Court affirmatively ruled that sexual intimacy is not an absolute prerequisite for a finding of cohabitation in a relationship analogous to marriage, the Court looked to the definition of cohabitation. The Court stated that to “cohabit” requires “living together in the same house as married persons live together, or in the manner of husband and wife.” The Court found that Brennan and Baker lived together for years and saw their arrangement as permanent or indefinite.

Brennan argued that affirming the Circuit Court decision would open a floodgate of cases involving close friends, siblings, and cousins. The Court of Appeals found that argument unpersuasive, and stated that the lives of Brennan and Baker were so intertwined and interdependent that another case such as this would be rare.

In affirming the lower court’s ruling, the Court acknowledged the dissenting opinion of Court of Appeals Judge Felton. Judge Felton raised the issue of whether a same-sex relationship can qualify as cohabitation with another person in a relationship analogous to marriage. The Court dismissed this particular issue on a procedural ground—that the issue had not been raised by the parties in the appeal and so was not properly before the court.

The family law attorneys at Livesay & Myers have years of experience with cases involving cohabitation and termination of spousal support, and are well-versed in the law in this area. Whether you are seeking to terminate spousal support or to maintain and preserve previously awarded spousal support, it is paramount that you retain an attorney who is up-to-date on current case law and who can aggressively advocate for your position.