What types of evidence do Virginia courts want to hear to disprove cohabitation analogous to a marriage?

In Kellogg v. Kellogg, Record No. 0025-13-4 (Va. Ct. App. 2013), an ex-husband sought to terminate his spousal support obligation on the basis that his ex-wife was cohabiting in a relationship analogous to a marriage for over six months.[1]  In that case, the Virginia Court of Appeals upheld the trial court’s decision that such cohabitation had not been sufficiently proven by the ex-husband.  Here is the evidence in a nutshell:

 Evidence of Separate Residences:

– They own separate residences.

– They do not exclusively live together.

– They sometimes do not visit each even when they are both in town.

– They only spend about 30 % of the nights together.

– The boyfriend does not even have a key to her place.

– They pay for their joint vacations separately.

– They keep their finances largely separate.

– They do not share any bank accounts.

– They do not share any investments.

– Neither is a beneficiary of the other’s insurance policies.

– Neither receives mail at the other’s residence.

– Neither keeps his or her stuff at the other’s residence.

Evidence of Cohabitation:

– The ex-wife and her boyfriend have a long-term romantic monogamous relationship.

– They spend almost all nights together at his house when the children are with their father.

– They basically spend between two to five nights per week at his house.

– They also spend one night per week together at the ex-wife’s house with the children.

– They buy groceries for each other.

– They go on vacations together at least three times per year

– They share holidays together.

– They attend extended family gatherings.

– They attend work-related social activities.

– They attend the children’s extracurricular activities together on occasion.

– The ex-wife has unfettered access to her boyfriend’s condo.

– She has a key to his condo.

– She has a parking spot at his condo.

So what was the essential bit of evidence in the appellate court’s eyes?  It was the fact that the wife’s teenaged children do not stay overnight at the boyfriend’s condo.  The court held that it was “inconceivable” that this couple would establish and share a common residence excluding wife’s children.  As such, there is no cohabitation and the ex-husband’s petition remains denied.