Assume the existence of a marital agreement that provides that spousal support shall terminate forever upon the happening of a terminating event, like a cohabitation with a member of the opposite sex for a week or more.  Assume that this agreement was incorporated into a divorce order years ago.  What happens when the former wife does in fact cohabit with a member of the opposing sex for more than a week?  Can the husband just stop paying her?  Must he continue to pay her spousal support until such time as the court enters an order stating that her support terminated forever due to her cohabitation?

In Weidlein v. Weidlein, Record No. 2145-14-4 (Va. Ct. Appeals 2015), the Virginia Court of Appeals finally provided some definitive answers on these issue.[1]  In that case, the former wife brought contempt proceedings against her former husband claiming that he hadn’t paid support for over 12 years and therefore owed her $434,050.60.  The former husband claimed that his support obligation terminated because his former wife cohabitated with a member of the opposite sex for more than a week on more than one occasion, which evidence he corroborated through the testimony of their children.  The trial court agreed with the wife, holding that the termination was not self-executing and thus required judicial intervention to make the termination official.  So the husband appealed . . .

On appeal, the court kindly answered some tough questions:

– Was this agreement self-executing?

No.  Self-executing termination provisions do not require judicial intervention to allow someone to stop paying spousal support because the “triggering event is empirically determined, such a date certain, reaching a specific age, or death.”  In other words, self-executing provisions are limited to situations where there can be no reasonable debate over whether the event actually happened.  In this case, co-habitation with a member of the opposite sex is per se an event that people can argue over, thus the termination provision regarding cohabitation was not self-executing.

– So the husband owed spousal support until the court intervened, right?

Yes and no.  If a self-executing termination provision is met, you do not need to go to court.  If a non-self-executing provision is met, you do need to get a court order entered stating that the termination did in fact occur.

– So the husband owed back spousal support until the trial court intervened, right?

No. This is the big news from this decision.  The court held that ongoing spousal support did not vest upon the former wife’s cohabitation with a member of the opposite sex for one week or more.  The court so held because the agreement’s language did not require anything else for termination to occur, like proof by clear and convincing evidence of cohabitation, which evinces the need to prove cohabitation in court before termination actually occurs.  Thus, in this case, the termination is effectively retroactive to the date of the terminating event.

– But doesn’t this contradict loads of caselaw stating that the court lacks the authority to retroactively modify spousal support, which becomes a judgment by operation of law “the moment each installment falls due and unpaid”?

No.  First, the court is bound by the agreement at issue, which can rejigger how termination of support usually works.  Second, the appellate court carefully says that this is not a retroactive modification of owed spousal support because the support did not vest in the first place because the terminating event occurred.  In other words, the court said that it is not retroactively modifying anything.  Instead, it is finding that support was not owed in the first place after the terminating event happened.

– But isn’t this the same type of termination language that the appellate court addressed in Shroud v. Shroud, 54 Va. App. 231 (2009), where the court said that “husband was not entitled to unilaterally terminate support payments without seeking entry of a proper court order”?

Yes, it is similar language, but the court in that case was not squarely faced with the question in this case: “Does a former husband continue to owe monthly spousal support past the point of a particular contingency’s event, which, under the agreement, terminated the support obligation?”

– But what’s the answer to that question? 

If the termination provision is self-executing, he does not continue to owe support, full stop.  If the termination provision is not self-executing, he has a theoretical obligation to continue to pay monthly spousal support until the court enters an order otherwise.  And if the agreement is clear that the termination occurs as of the date of the very terminating event, the court can order that support ceased to vest as of the date of the terminating event, thus effectively wiping out any support the former husband otherwise would have owed thereafter.

– So what does this all mean for me? 

Well, it lets people know that the courts are finally going to fully respect the spousal support provisions they put in their agreements, including how termination is supposed to happen vis-à-vis an ongoing support obligation.  Also, this case is a nice reminder that it is almost always wise to seek out a judicial decree stating that you no longer owe spousal support so that you don’t wake up one morning with a bill for $434,050.60.

[1] This case is up on appeal to the Virginia Supreme Court, so it’s possible that our highest court will change these answers altogether.