Cohabitation and Termination of Spousal Support: Burden of Proof

Understanding Cohabitation and Termination of Spousal Support

When parties contract through a separation agreement for the potential termination of spousal support based on cohabitation, it matters what exact language is used. Having a seasoned attorney who knows how to best address your goals as they relate to terminating spousal support is paramount.

Virginia Code Section 20-109(A): Key Provisions

Virginia Code Section 20-109(A) states in relevant part:

“upon order of the court based 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. The provisions of this subsection shall apply to all orders and decrees for spousal support, regardless of the date of the suit for initial setting of support, the date of entry of any such order or decree, or the date of any petition for modification of support.”

The Importance of Language in Separation Agreements

Many attorneys directly cite Code Section 20-109(A) in the spousal support termination provision. Other attorneys do not cite Section 20-109(A) but reference the language within. Choosing to cite the code section or not impacts the burden of evidence that must be presented.

Impact of Citing Code Section 20-109(A) in Spousal Support Termination

The burden of evidence means the amount of evidence that must be presented to be successful. In O’Hara v. O’Hara, the Court of Appeals of Virginia affirmed that if the separation agreement does not reference Code Section 20-109(A), then the burden of proof changes.

Burden of Proof: Clear and Convincing Evidence vs. Preponderance of Evidence

The burden of proof under Section 20-109(A) is clear and convincing evidence, which is the highest burden of proof for civil matters and is right under reasonable doubt. If the provision does not cite Section 20-109(A), then the burden of proof is a preponderance of the evidence, which is lower than clear and convincing evidence.

If you are the spouse receiving spousal support, you will want to ensure that your counsel directly cites Section 20-109(A) in the separation agreement. Having a higher burden of evidence makes it more difficult to terminate spousal support.

If you are the spouse paying support, executing an agreement that does not cite 20-109(A) would result in a lesser burden of evidence to present when a motion is filed.

While the burden of evidence may seem nuanced and technical, it can be the difference between success and failure at subsequent motions to terminate.

The Role of Experienced Attorneys in Spousal Support Cases

Ensuring your counsel knows the relevance and power of drafting provisions to your benefit is incredibly important. Understanding these legal distinctions and the impact of cohabitation on spousal support is essential for navigating this complex area of family law. With the right legal advice and strategy, you can ensure that your interests are well-protected.

Our experienced and compassionate Family Law Team can help you through one of the most difficult times in your life. Reach out to us today for a consultation.

Stephanie Sauer, Partner & Family Law Group Chair
DIRECT: 571-489-6852
ssauer@thegellerlawgroup.com