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Another Bite at the Apple: the Role of Unconscionability in Terminating Spousal Support

Virginia courts may terminate spousal support “upon clear and convincing evidence that the spouse receiving support has been habitually cohabitating with another person in a relationship analogous to a marriage for one year or more,” pursuant to Virginia Code § 20-109(A). As long as the payor can prove the above, they are home free, right? Actually, that depends.

Virginia Code § 20-109(A) gives the payee another bite at the apple to maintain spousal support. The payments will continue in some form if “the spouse receiving support proves by a preponderance of the evidence that termination of such support would be unconscionable.”

So how do you determine if terminating spousal support would be unconscionable? The court in Conley v. Bonasera wrestled with this very issue. In this case, the paying spouse appealed the trial court’s finding that it would be unconscionable to terminate spousal support, even after a finding of cohabitation in a relationship analogous to a marriage for more than a year.

To define “unconscionable,” the appellate court sought guidance by looking at the intersection of contract law and marital agreements. It determined that unconscionability is rooted in “intrinsic fairness… in relation to all attendant circumstances, including the relationship and duties between the parties.” See Derby v. Derby. In addition, “evidence establishing not only a gross disparity in the division of assets but also infirmity and pecuniary necessities” would equal unconscionability. See Sims v. Sims.

Furthermore, the appellate court on Conley vs. Bonasera leaned on the “familial needs vs. ability to pay” analysis from Williams v. Williams in its unconscionability analysis. In the end, the court found that terminating spousal support would not be unconscionable because (1) unlike Derby and Sims, the receiving spouse would not be destitute if denied spousal support, (2) although there was an ability to pay, the receiving spouse was not cohabitating in a relationship analogous to a marriage out of necessity, and (3) there was not a “gross disparity between the parties in conjunction with” the receiving spouse’s financial need in light of the payor’s ability to pay.

The determination of whether it would be unconscionable to terminate spousal support, even after a showing of cohabitation in excess of a year in a relationship analogous to a marriage, is no easy task. A successful challenge to maintaining spousal support in these circumstances will depend on the unique facts of each case.

If you are the payor or payee in a spousal support termination case where unconscionability might be raised as a defense, it is of the utmost importance to seek the advice of legal counsel. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Arlington, Ashburn, Manassas and Fredericksburg-Stafford, representing clients throughout Northern Virginia. Contact us to schedule a consultation today.