Virginia Spousal Support: The Final Meanings of Cohabitation and Relationship Analogous to a Marriage?

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 can two members of the same sex “cohabit” in Virginia?  Can they be in a “relationship analogous to a marriage”?  When the Virginia Court of Appeals addressed this issue last year in Luttrell v. Cucco, which we discussed at length here, the answer was that two members of the same sex could not cohabit in a relationship analogous to a marriage under Va. Code § 20-109(A).  However, when the Virginia Supreme Court addressed this very same case on appeal this year, it came to the opposite conclusion.  It held that same sex persons could cohabit in a relationship analogous to a marriage under Va. Code § 20-109(A).  It noted that the code section itself only references “persons” in such relationships and contains no explicit reference to heterosexual couples, men, or women.  It further noted that the original legislative bill on this issue referred to members of the opposite sex and did not have the “relationship analogous to a marriage” language.  The change from “members of the opposite sex” to “persons” and the addition of a “relationship analogous to a marriage” indicated the legislature’s intent that this section be broad enough to encompass same sex relationships.[1]

[1] I’m incredibly wary of anyone trying to interpret a statute from largely unknowable “legislative intent,” but this particular invocation of legislative intent is about as good as it gets.