What happens when…

Melissa DossDivorce, Lawyer, news

same sex marriage

Same sex marriages are being legalized in almost every state as the opposition dwindles. An interesting question has since come up: What happens if a former spouse that is receiving spousal support is now cohabitating with a same sex partner? In the past, the law was usually pretty cut and dry that if you were cohabitating with a person of the opposite gender, spousal support would stop. The courts in Virginia have set the precedence for us.

Top Virginia court nixes alimony for woman now cohabiting in same-sex relationship

If Samantha Cucco, after her 2008 divorce, had been in living with a man in a relationship analogous to marriage, she would have forfeited the alimony her ex-husband agreed to pay for eight years.

So, under a landmark U.S. Supreme Court same-sex marriage decision last year, it was only right that she also forfeit alimony payments after cohabiting with another woman and entering into a marriage-like relationship with her, the Virginia Supreme Court decided last week.

Reversing two lower courts, the state’s top court said in its Thursday opinion (PDF) that failing to apply the same standard to same-sex couples would create an “untenable” result: “The individual in the same-sex relationship would continue to receive support while the individual in the opposite-sex relationship would not.”

Attorney Gail Deady of the ACLU of Virginia, who represented ex-husband Michael Luttrell in the appeal of the Fairfax County case, agreed.

“Marriage equality means marriage equality,” she told the Richmond Times-Dispatch.

Cucco had argued that a state cohabitation law under which this result was reached does not apply to same-sex couples.