Virginia Code § 20-109(A) was amended in 1997 to include language terminating spousal support 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 what’s “cohabiting”? And what is a “relationship analogous to a marriage”? Can two members of the same sex “cohabitate” in Virginia? Can they be in a “relationship analogous to a marriage”?
In Brennan v. Albertson, 2012 Va. App. LEXIS 240, the Virginia Court of Appeals upheld a trial court’s order terminating spousal support based on evidence of a relationship analogous to a marriage despite the fact that the alleged couple was not in an any romantic/intimate relationship and despite the fact that the couple were of the same sex. However, the appellate court specifically held that it was not determining whether a same sex relationship could qualify as “cohabitat[ion] with another person in a relationship analogous to a marriage” under Virginia Code § 20-109(A). Indeed, the appellate court held that it could not make that determination because the appellant’s assignments of error did not raise that question.
In Luttrell v. Cucco, Record No. 1768-14-4 (Va. Ct. Appeals 2015) (unpublished), the appellate court was finally forced to answer that tough question: could a same sex relationship qualify as “cohabitat[ion] with another person in a relationship analogous to a marriage” under Virginia Code § 20-109(A). Though the decision is unpublished, the appellate court said that same sex couples could not qualify as persons cohabiting with another person in a relationship analogous to a marriage under Virginia Code § 20-109(A).
The court based its decision on the fact that prior to the aforementioned amendment our appellate courts had held the word “cohabit” and the phrase “analogous to a marriage” to be solely between a man and a woman. Thus, when the legislature used those very words in its amended code section, it was necessarily adopting those definitions of “cohabit” and “analogous to a marriage,” including their application to only heterosexual couples.
So where does this leave us? Well, this opinion is unpublished, so who really knows. But, in the end, this likely means that same sex couples, partners, or even friends will be exempt from spousal support terminations under this code section until it is amended, reviewed again on appeal, or someone attacks its constitutionality at some point. As for the opinion in Brennan, its core analysis likely still survives. That is, spousal support can likely still be terminated in the event of a non-romantic friendship involving significant, permanent ties that render it analogous to a marriage, provided, of course, that the friendship is between members of the opposite sex.
 The court didn’t seem to care that the code section itself only references “persons” and contains no explicit reference to heterosexual couples, men, or women. The court just reads in those limitations.