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Divorce

7/31/2010
Hunter W. Jamerson
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Court Cannot Contradict Property Settlement Agreement As To Spousal Support Terms

A court cannot deviate from the terms of a property settlement agreement when evaluating spousal support unless expressly given the power to do so under the agreement.

Labels: divorce PSA spousal support

10/7/2009
M. Scott Bucci
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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In an unpublished opinion authored by the chief judge of the Virginia Court of Appeals, a wife’s living arrangements were found to create only the “perception of cohabitation”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.

Labels: divorce spousal support

9/28/2009
M. Scott Bucci
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Material Change In Circumstances Does Not Lead To Reduction In Spousal Support

The Court of Appeals recently affirmed the trial court's refusal to reduce a spousal support obligation, despite a finding that there was a material change of circumstances. In Lane v. Lane, husband and wife divorced in 1997. In the separation agreement (which was incorporated into the divorce decree), husband agreed to pay wife $6,000 per month, wife agreed to try to make herself more finanically self sufficient, and the parties agreed to renegotiate if husband's income was reduced substantially. After divorcing, husband bought and sold high end real estate. Wife also entered the real estate market.

Husband suffered significant business losses in the downturn in the real estate market, and sought to have his spousal support obligation reduced. The trial court held, and the Court of Appeals agreed, that the market crash led to a material change in circumstances that was not the husband's fault.

However, the Courts noted that in addition to there being a material change, that change must also warrant a modification of support. In looking at the facts of the case, the trial court observed that the wife had suffered losses in the real estate market as well; she had been diagnosed with cancer which affected her income generating ability; and the husband made "good business decisions" and therefore had a much greater earning capacity than wife.

Accordingly, the Court held that "[n]ot every material change of circumstance justifies a modification of spousal support." The Court rejected the husband's argument that the wife failed to make a good faith effort to improve her earning capacity. This case stands as a reminder that even where there is a material change in circumstances that is not the payor's fault, a reduction of support obligations is not automatic.

Labels: change in circumstances divorce spousal support