VA Supreme Court recognizes unmarried same-sex couples in fight over alimony
While the fight over marriage equality might be seem like a thing of the past, minor legal loopholes still exist for some scenarios.
As the law sat before a recent state supreme court ruling, when a couple divorces alimony agreements last until the dependent spouse moves in with someone of the opposite sex and lives there for a year or marries them, those payments stop.
But a loophole existed in lasting state code which still uses terms like “husband” and “wife” when determining benefits like alimony.
The story begins with A Washington Post article about Michael Luttrell and Samantha Cucco of Fairfax County. The couple had divorced in 2008 and the two signed an agreement promising Cucco alimony until she entered a “cohabitation” relationship with someone. And it turns out she’d been living with and engaged to a woman since 2012.
A Fairfax County judge heard Luttrell’s suit against Cucco and found in her favor because of the nature of cohabitation law being different from marriage law.
“… The Constitution may mandate that same-sex people have the right to get married” wrote Fairfax Circuit Court Judge Charles Maxfield. But that “has [nothing] to do with termination of spousal support… you have to be cohabiting. And cohabiting requires different sexes.”
Sure enough, attempts to update the rest of Virginia’s code after the fall of the ban on same-sex marriage have been snubbed out by state law makers.
So that left the decision up to the courts, and while the County court found in favor of Cucco, and same with an appellate court.
More from the WaPo:
In an opinion written by Appeals Court Judge Rossie D. Alston Jr., the court ruled that “neither the [Virginia] Supreme Court nor this Court has interpreted the phrase ‘cohabitation, analogous to marriage’…to apply to same-sex relationships.” Alston added, “we may presume the General Assembly intended the phrase ‘cohabitation, analogous to marriage,’ to be understood in the meaning previously determined by the Virginia courts — as ‘a status in which a man and a woman live together continuously.’” Therefore, Alston concluded, the court would “affirm the trial court’s determination that…wife could not cohabit with another woman.”
But Luttrell didn’t quit and took his fight to the State Supreme Court which finally found in his favor.
In a ruling released last week, Justice William C. Mims said that while the state law specifically describes cohabitation has happening between opposite sexes, it also suggests such a relationship could be analogous to marriage even in the case of same-sex couples. If the relationship involves “a shared residence, a degree of intimacy, some financial support, and an assumption of duties normally associated with marriage” then it’s pretty safe to call the relationship marriage, at least in the case of ending alimony payments.
“By declining to modify the word “person” with the phrase “of the opposite sex,” the General Assembly signaled its intention that “person” would include individuals of either sex,” wrote Mims who clarified the lack of legal same-sex recognition at the time of Luttrell and Cucco’s marriage was irrelevant to the issue.
Through this interpretation, Mims sided with Luttrell and ordered the case back to the lower court with the new interpretation, effectively recognizing the same-sex relationship back to 2012 – ordering the alimony to stop, as well has Cucco to pay back the money she received since 2012.
“I think it’s a good thing,” Joseph A. Condo, a longtime Virginia divorce lawyer and former state bar president, told The WaPo. “You can’t be a cafeteria LGBT advocate and say, ‘we want the same rights in marriage, but we don’t want our alimony payments cut off.’ It’s logical, it’s fair.”
Openly gay legislators rally to remove defunct same-sex marriage bans from Virginia law and constitution
“There are a number of Republicans, even those are against LGBT equality, who do accept that fact that the Virginia state code books should say what is the law and not what isn’t the law…”October 19, 2016
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