If you agree to make certain payments for the benefit of your former wife “in lieu of spousal support,” can you automatically stop making those payments if your former wife remarries?
In Smith v. Thompson, Record No. 1483-14-1 (Va. Ct. App. 2015) (unpublished), the court was faced with answering this very question when the former wife in that case remarried and the husband sought to terminate such payments under Va. Code § 20-109(D)
At issue was the following language from a joint property settlement agreement that was incorporated into a final order of divorce:
“IV. WAIVER OF RIGHT TO SUPPORT: In consideration of the other terms of this agreement, and whereas both spouses are fully self supporting, both parties waive all right or claim which they may now have to receive support or maintenance from the other, subject to the below listed provisions. No court shall have jurisdiction to award spousal support at any time regardless of any circumstances that may arise, other [than] those expressly listed within this agreement.
A. Husband acknowledges that he is presently liable to wife for the cost of child care and support in the amount of $200 a month . . . up to and including (with final payment) July 1, 2009.
B. Wife agrees to waive receipt of spousal support in lieu of:
1. Husband maintaining the cost of medical, dental and auto insurance coverage for Wife and Minor Child, cost of all personal property taxes on the two vehicles currently owned by the parties and monthly cost of maintenance and insurance of the Sprint cell phones for Wife and Minor Child.
2. Husband will continue to maintain life insurance policies on Husband, naming Wife as beneficiary and in the event of Wife pre-deceasing Husband, beneficiary will be Minor Child . . . .”
In this case, the former husband claimed that he could terminate his continued payment of insurance costs, etc., because said payments constituted in kind spousal support. In other words, he was paying spousal support to her, just not in the typical form of monthly payments. He claimed that was the whole reason for the “in lieu of” language in subsection (B). The former wife, on the other hand, argued that there was nothing to terminate because she was not receiving spousal support. She claimed that she clearly waived spousal support under the agreement, with references to the same in the paragraph’s title, its first sentence, and again in subsection (B). She further claimed that the parties could just as easily have written “as and for,” instead of “in lieu of,” if they wanted to signal their intention that said payments were de facto spousal support.
Well, the Virginia Court of Appeals agreed with the former husband using the following core reasoning:
“Paragraph IV of the agreement covers spousal support and child support. Although it is titled “Waiver of Right to Support,” it specifically provides for a set amount of monthly child support in Paragraph IV(A). Clearly, therefore, it does not reflect a waiver of all support. Further, the introductory paragraph that follows the heading and precedes the lettered and numbered subparagraphs contains additional relevant language. The first sentence of that paragraph refers generally to all types of support. It states that both parties waive any right to “receive support or maintenance from the other,” but it makes that waiver “subject to the below listed provisions.” (Emphasis added). This language, although general, implies that the provisions that follow involve support. The second sentence of the introductory paragraph is more specific and states that no court has jurisdiction to award “spousal support at any time regardless of any circumstances . . . , other [than] those expressly listed within this agreement.” (Emphasis added). This language, like the language in the first sentence, implies that payments made pursuant to other “circumstances” listed in this portion of the agreement do, in fact, constitute spousal support.”
Honestly, this is a fine analysis, especially given the court’s repeated references to this agreement being cobbled together. Nevertheless, it’s worth noting that the court focuses on two clauses (“subject to the below listed provisions” and “other [than] those expressly listed in this agreement”) that are often throw into these agreements as boiler plate just in case there are conflicting provisions later on in the agreement. That is, it’s entirely possible that these were left over boiler plate provisions that were intended to be of no consequence because there were no explicit provisions elsewhere in the agreement clearly awarding the former wife spousal support or otherwise providing the other circumstances under which she could get an award of formal spousal support. Frankly, it’s entirely possible that what the parties really intended was for the former wife to have the reserved right to seek spousal support should the former husband fail in his obligation to pay these other expenses in lieu of spousal support. But, given that they were imprecise in their language elsewhere in the agreement, who really knows what they anticipated from this section of their agreement?