Virginia Court of Appeals: Same-Sex Couples Can Not Cohabit


Posted on May 21st, 2015, by Anneshia Miller Grant in Family Law. Comments Off on Virginia Court of Appeals: Same-Sex Couples Can Not Cohabit

Court of AppealsIn an unpublished opinion issued on April 21, 2015, the Virginia Court of Appeals upheld the ruling of a trial court that same-sex couples cannot cohabit under Virginia law. The case, Lutrell v. Cucco, might prove to be very important in the evolution of the law regarding same-sex relationships in Virginia.

In Lutrell v. Cucco, Mr. Lutrell (represented by Livesay & Myers, P.C.) filed a motion to terminate his $2,450 per month spousal support payment to his ex-wife Ms. Cucco based upon her cohabitation with another person for more than a year, pursuant to Virginia Code §20-109. That code section states in relevant part that:

[u]pon order of the court 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 commencing on or after July 1, 1997, the court shall terminate spousal support and maintenance 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.

During the trial court hearing, her attorney admitted that Ms. Cucco had been living with another woman. Mr. Lutrell wished to present evidence that the cohabitation was for more than one year. The court never heard such evidence, as it ruled that regardless of whether the two women had been living together, spousal support could not be terminated because under existing Virginia case law, such as the 1992 case of Frey v. Frey, cohabitation could only occur between a man and a woman. The Court of Appeals agreed.

The ruling in Lutrell is particularly interesting in contrast to the ruling of the same Court of Appeals less than three years earlier in Brennan v. Albertson. In that case, the Court of Appeals affirmed the ruling of a trial court that two women were cohabiting, such that the obligation of the ex-husband of one of the women to pay her spousal support was terminated.

In Lutrell, the Court of Appeals declined to deal with the actual relationship between the women who were living together, and instead limited its ruling to a statutory construction argument. Specifically, the Court argued that since the Virginia General Assembly failed to address the 1992 case law of Frey, the legislature must have intended for cohabitation to only mean a status in which a man and a woman live together. However, even that analysis seems to be in direct conflict with Virginia law.

Prior to 1997, spousal support could only be terminated if the payee remarried. In 1997, the General Assembly amended Virginia Code §20-109 to also permit termination of spousal support in certain cases of long-term cohabitation. Specifically, the legislature added to §20-109 the language cited above, which allows for termination of support where “the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more.”

The legislature could have easily limited termination to cases where the recipient of support has been cohabiting with another person of the opposite sex. But instead it simply used the language “with another person analogous to marriage.”

The amended language of §20-109 was designed to eliminate the trend of support recipients simply refusing to marry the person with whom they were cohabiting in order to continue receiving support. Same-sex couples were not able to legally marry in Virginia in 1997, but as of January 21, 2015 Virginia now allows and recognizes same-sex marriages. It therefore seems strangely contradictory to allow members of same-sex couples who are receiving spousal support to take advantage of the same loophole the legislature intended to close in 1997.

In any event, Lutrell v. Cucco is certainly an interesting case, and perhaps a pivotal one in the evolution of this new area of case law addressing same-sex relationships in Virginia. On Mr. Lutrell’s behalf, the ACLU is currently appealing (with Livesay & Myers, P.C. as co-counsel) the ruling of the Court of Appeals to the Supreme Court of Virginia. We will update this blog with future developments in this important case.

The attorneys at Livesay & Myers, P.C. represent members of same-sex couples in divorce, custody, support, adoption and other family law cases across Northern Virginia. If you are in a same-sex relationship and have questions regarding your rights and obligations under Virginia law, contact us to schedule a consultation with one of our experienced family lawyers in Fairfax, Leesburg, Manassas or Fredericksburg today.

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About 

Anneshia Miller Grant is a senior associate attorney in the Fairfax office of Livesay & Myers, P.C. She practices exclusively family law, representing clients clients in separation, divorce, custody, visitation and support cases throughout Fairfax, Alexandria, Arlington and Northern Virginia.



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