Virginia Spousal Support: Remarriage vs. De Facto Remarriage

The recent unpublished opinion of Miller v. Green, Record No. 1993-14-3 (Virginia Ct. App. 2015), highlights the perhaps unexpected differences between spousal support that terminates on the recipient’s remarriage and spousal support that terminates because the recipient has been in a relationship analogous to a marriage for over one year.

Virginia Code § 20-109 outlines various scenarios under which spousal support may be terminated.  In particular, it contemplates two particular scenarios calling for termination that are just about identical: the recipient remarries or the recipient has been a relationship analogous to a marriage for over one year.  In each of these scenarios, it makes at least some logical sense to terminate spousal support because the recipient will likely have the financial support of his/her spouse or de facto spouse, thus eliminating any need for the former spouse to continue on with his/her financial support.  What’s interesting, and perhaps concerning, is the differences in when spousal support is deemed terminated under each scenario.

First, Virginia Code § 20-112 outlines some basic rules on how far back in time one can modify or terminate spousal support:

Except as provided by § 20-110, no support order may be retroactively modified, but may be modified with respect to any period during which there is a pending petition for modification in any court, but only from the date that notice of such petition has been given to the responding party.

When it comes to remarriage, Virginia Code § 20-109(D) states:

Unless otherwise provided by stipulation or contract, spousal support and maintenance shall terminate upon the death of either party or remarriage of the spouse receiving support. The spouse entitled to support shall have an affirmative duty to notify the payor spouse immediately of remarriage at the last known address of the payor spouse.

When it comes to a relationship analogous to a marriage, Virginia Code § 20-109(A) states:

Upon petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance that may thereafter accrue, whether previously or hereafter awarded, as the circumstances may make proper. Upon 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.

So when does spousal support end for new marriages?  Upon the date of the marriage itself.  And when does spousal support end for new de facto marriages (assuming that it’s proven in court)?  Upon the date that the payee received notice of the petition seeking to terminate spousal support.  See, e.g., Miller v. Green.

But if each of these termination scenarios seeks to cure the same ill, why have their termination dates be so different?  Indeed, the legislature could have just chosen to terminate spousal support upon the proven date that the de facto marriage commenced, thus treating it somewhat like actual remarriages, which terminate support automatically upon the remarriage.  Or, it could have chosen to terminate spousal support upon the proven date that one year has elapsed in such a relationship, thus having spousal support terminate when the ground for petitioning to terminate has first been met.  Instead, with relationships analogous to a marriage, you first have to learn that the former spouse is in such a relationship.  Then you have to monitor that relationship to see that it has existed for over one year.  Then you have to petition the court once that one year is up.  And then, finally, you have to prove to the court by clear and convincing evidence that the former spouse has been in a relationship analogous to a marriage for over one year.  This can all take years, which is why it’s surprising that the legislature has done little to help out the person continuing to dole out support to someone who likely no longer needs it.

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