By Adam T. Kronfeld of Duff & Kronfeld, P.C. posted in Family Law on Wednesday, July 8, 2015.
By: Adam T. Kronfeld, Esquire
The general rule governing payment of spousal support under a court order is that a payor cannot cease paying or pay less unless a Court has entered a new order changing or terminating the spousal support obligation. However, there are exceptions – and exceptions to exceptions – that make this a far more nuanced area of the law than the general rule.
Under Virginia law, there are a handful of default “terminating conditions” for a spousal support obligation. Those include the death of the payor, the death of the recipient, the remarriage of the recipient, and the recipient living together with another person in a relationship analogous to a marriage. Additionally, the Court can define a specific duration for the payment of support, after which the obligation ends.
In addition the foregoing, parties who enter into written agreements have a great deal of flexibility – more so than the Courts do – to define how and when spousal support might end. For example, the parties can stipulate that if the recipient spouse’s income exceeds a certain amount, then he or she will no longer receive spousal support. They can agree that if the payor becomes disabled or retires, then the support obligation might end.
The question that commenced this article was when a party can unilaterally stop paying spousal support. In other words, in what situations must a payor first get a Court’s “blessing” to end his or her payments, and in what situations may the payor himself look at the parties’ circumstances and decide that they do not warrant any further support payments?
Fortunately, not every circumstance necessitates that a Court enter an order ending the obligation. Where a payor or recipient of spousal support dies, that is a fairly clear and unmistakable event, and the payor (or his Executor) does not need to prove that death to the Court to absolve the payor of his obligation. The same is true when a recipient remarries: the mere happening of that event immediately ends the obligation.
One event that tends to be a frequent subject of litigation is a recipient spouse living with another individual with whom they are romantically involved, but without having actually married. Virginia law states that in that situation, a court will terminate spousal support “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.” In that situation, the Virginia Court of Appeals recently affirmed that the support obligation does not end automatically, but instead only when the payor obtains a formal ruling from the Court finding that the cohabitation has, in fact, occurred.
The most significant gray area is in evaluating language in agreements written by the parties themselves, where a Court did not make a ruling and where default Virginia law does not necessarily apply. Because parties and their lawyers can sometimes get very creative with their language, it is impossible – or at least imprudent – to draw broad generalities about them. Each spousal support agreement must be evaluated on its own terms, especially those that purport to “automatically” end support.
Where a written agreement purports to terminate spousal support upon the occurrence of some event, the most significant question is whether the agreement is “self-executing.” In other words, does the event immediately end the obligation as soon as it occurs, or must the payor take the affirmative steps of asking the Court to enter an order terminating his obligation? This can be a much trickier question than it appears. The Courts tend to find that the terminating event is “self-executing,” such that the payor can stop paying, if it is something “empirically determined,” like a date, reaching a specific age, death, or the like. If any part of the language the parties used necessitates any sort of judicial interpretation, or any subjective determination, then it is probably not “self-executing,” and the payor cannot just stop paying without a Court order.
If you have a spousal support question, including a question whether and how a spousal support obligation that you owe or receive might end, please contact an attorney at The Duff Law Firm, and we will be happy to discuss your circumstances with you.