Bucci & Dix

Trailer park cohabitation between ex-wife and man insufficient to terminate spousal support obligation

In an unpublished opinion authored by the chief judge of the Virginia Court of Appeals, a wife's living arrangements were found to create only the "perception of cohabitation" insufficient to nullify spousal support payments pursuant to a divorce decree.  The husband and wife in Tolley v. Tolley, were divorced in June 2006.  The final divorce decree required husband to pay $1200 per month in spousal support, but only subject to certain limitations: the spousal support arrangement would terminate if (1) husband or wife died, (2) if wife remarried, or (3) if wife cohabitated with a member of the opposite sex in a relationship analogous to marriage.  Over the next two years, wife shared a trailer home with another man and occasionally paid his bills from her bank account.  Believing the two were holding themselves out as husband and wife, and thus believing that the divorce decree was violated, husband asked a Hampton trial court to terminate his obligation to pay spousal support under the decree.

The trial court found that the wife's living arrangements created only the perception of cohabitation and held that the relationship was not analogous to marriage.  The Court of Appeals agreed.  The Court looked at four factors to decide whether prohibited cohabitation had occurred: (1) sharing of a common residence, (2) intimate behavior or romantic involvement, (3) provision of financial support, and (4) the duration and continuity of the relationship.  Weighing these factors, the Court found that simply living together was inadequate to establish a relationship analogous to marriage. The Court of Appeals affirmed the judgment of the trial court, upheld the divorce decree, and order continued payment of spousal support.

The case stands as a reminder that it is often difficult to establish a "relationship analogous to marriage."  In this case, the standard had not been met even when the wife lived with another man and paid bills over 2 years.