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Mortgage Payments Held Not Spousal Support Under Terms of Property Settlement Agreement

The Virginia Court of Appeals reversed a trial court's finding that a former wife's cohabitation analagous to a marriage terminated the husband's obligation to maintain the mortgage payments on the house she got in the divorce pursuant to their Property Settlement Agreement (PSA). This is an interesting case because it encompasses competing interests relative to what the parties intended by the PSA, and how the statute permitting termination or modification of spousal support when the recipient spouse is "shacking up" is interpreted.

Under Code section 20-109(A), a former spouse receiving alimony (spousal support) may forfeit the right to keep receiving it if for one year, he or she cohabits with another in a relationship "analagous to a marriage." The underlying thrust of this statute is a "you can't have your cake and eat it too" approach intended to close a loophole in the law. Prior to the amendment of section 20-109, only the remarriage of the recipient spouse or the death of either spouse was grounds for termination of spousal support so long as there were no material changes in circumstances or the parties' PSA contained other grounds. Since the change in society's acceptance of two unmarried people living together under the same roof, ex-spouses opted to "live together" rather than marry their new partners to avoid losing spousal support.

In this case, the PSA specifically stated that both parties waived the right to receive spousal support from the other. However, the PSA also obligated the husand to transfer his interest in the jointly owned marital residence to the wife, and to pay the mortgage payments in her behalf. The husband did this for quite some time. However, the husband later sought to be relieved of the mortgage payment obligation contending that the wife's cohabitation with another man for over a year was analagous to a marriage under the statute and his payment of the mortgage was analagous to alimony, and therefore the wife should have to forfeit that benefit and pay the mortgage herself. The trial court agreed with the husband, and the wife appealed. A three-judge panel of the Court of Appeals sustained the trial court, and the wife appealed to the full court.

En banc, the full court ruled that the trial court erred in finding that the mortgage payments were "in the nature of" spousal support, becuase in the plain language of the PSA both parties waived spousal support. Therefore, the mortgage payments not being spousal support, the bar of section 20-109(A) did not apply, and husband must continue to make the mortgage payments.

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