Virginia Code Sec. 20-109(A) provides for the termination of a spousal support obligation "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." In Luttrell v. Cocco, the Virginia Court of Appeals addressed the issue of how 20-109(A) would apply to same-sex couples. There, Husband sought to modify his support obligation to his former Wife based upon her cohabitation and engagement to another woman for at least one year. The Court of Appeals construed the cohabitation statute not to apply to the same-sex couple and affirmed the denial of Husband's motion to modify spousal support. This is a decision that confounds the mind in light of the 2012 Court of Appeals decision in Brennan v. Albertson, where the Court upheld a termination of spousal support to an ex-wife who was living with another women in a platonic relationship. The difference between the two opinions is that the issue of whether a same-sex couple could "cohabit" was not before the Court in Brennan, because in that case the two females were not romantically involved but did consider the relationship as permanent or indefinite. Accordingly, the Virginia Court of Appeals has permitted a husband to terminate his spousal support obligation on the basis that his ex-wife was living with a female friend, but the Virginia Court of Appeals precluded a husband from terminating his spousal support obligation where his wife was living with another woman in a romantic relationship with the intention to marry. On the face, the two opinions seem to be at odds with each other, and it seems likely that the General Assembly will need to revise Section 20-109(A) given the fact that same-sex marriage is now legal in Virginia.
Maddox & Gerock encourages all Virginia family law attorneys to attend this amazing advanced family law retreat: Tying & Untying the Knot: Advocating Same Sex Family Law Issues. It will take place on February 20-21, 2015 at the Boar's Head Inn, Charlottesville, VA. Partners Julie Gerock, Katharine Maddox and Marcia Maddox plan to attend.
While same-sex marriage is likely en route to legalization, same-sex divorce currently poses serious problems for married same-sex couples due to residency and other state requirements.
This New York Times article sheds light on the recent Supreme Court ruling, and the potential impact it could have on same-sex divorce, which, as we noted in this blog, Article on the Higher Costs of Same-Sex Divorce, can be very problematic.
According to a CNN Money article published yesterday, the costs of same-sex divorce are higher than the costs of opposite-sex divorce.