Can I Terminate Spousal Support Based on My Ex-Spouse’s Living in a Same Sex Relationship?

Same-sex marriages that are valid under the law of any state are now recognized in Virginia and same-sex couples may now legally marry in Virginia. However, that recognition does not necessarily apply in all areas of family law.  In a recent Virginia Court of Appeals case, Luttrell v. Cucco (unpublished), an ex-husband tried to terminate his spousal support obligation to his former wife based on her cohabitation with another woman. Virginia law allows termination of spousal support when the spouse receiving the support has been “habitually cohabiting with another person in a relationship analogous to marriage.” Although Virginia now recognizes same-sex marriages, the prior case law defines “cohabiting” as between a man and woman. The Virginia Court of Appeals upheld the trial court’s ruling that same-sex couples cannot cohabit under the meaning of the termination of spousal support statute.   The Court went on to say that because the General Assembly has not addressed or altered the case law, the Court of Appeals was stuck with case law defining cohabitation as between a man and a woman who live together assuming duties normally associated with a marital relationship. This is an interesting example of where the law has not caught up with itself. -- By Heather Wheelock Winter, Associate at Hall & Hall