Charlottesville Divorce Lawyer Rob Hagy

Trial Court Correctly Picked The Much Earlier Separation Date-Intent to Separate Doesn't Have To Be Continuous.

In the case of Lisann v. Lisann, the Virginia Court of Appeals, in a published opinion, upheld the trial court's determination that the parties separated on July 14, 2014, and that the trail court correctly relied on that separation date when making its equitable distribution award. Husband contended that the trial court erred in finding that the parties’ separation date was in July 2014 rather than December 2018—the date on which husband contends that he intended the separation to be permanent. This dispute about the separation date matters because it impacts the trial court’s equitable distribution and spousal support determinations.

Husband argued that wife’s conciliatory statements and activities subsequent to July 14, 2014, show that wife did not
continuously maintain the intent to permanently separate after that date. Husband further contends that the trial court erred in relying on the July 2014 separation date when determining its equitable distribution award and spousal support award. Addressing husband’s argument requires this Court to resolve an issue of first impression in Virginia: whether a party who
intends to separate permanently at the commencement of the statutory separation period for a no-fault divorce must—to preserve the separation date—continuously maintain the intent to separate permanently throughout the separation period. 

As a matter of first impression, the Virginia Court of Appeals held that a party seeking a no‑fault divorce under Code § 20-91(A)(9) is not required to show that either party continuously maintained, throughout the statutory period, an intent to separate permanently. The statutory intent requirement under Code § 20-91(A)(9) is satisfied when, at the commencement of the statutory separation period, a party has the intent to separate permanently. Therefore, the trial court did not err in finding that the parties’ separation date was July 14, 2014, and not December of 2018.

If you have questions about your separation, please contact our office at (434) 293-4562.

Rights of Long-term Unmarried Couples When They Break Up.

Rights of long-term unmarried couples when they break up. In 2018, Brynn Cameron, the longtime girlfriend of NBA star Blake Griffin, sued Griffin for “palimony” after he left her and their children for reality TV star Kendall Jenner. “Palimony” is money one partner pays to a cohabiting partner after a breakup so that the recipient partner can maintain the lifestyle he or she has become accustomed to. Griffin’s relationship with Jenner did not work out, but he wound up agreeing to pay Cameron $32,000 per month for palimony, child support and breach of an oral agreement he allegedly made to support her when she abandoned her career to be with him. Most people aren’t wealthy pro athletes who end up seeing their relationship woes in tabloid headlines. Still, the Griffin saga underscores that if you have a long term relationship with someone and live as though you’re married, you and your former partner may still have certain rights if the relationship doesn’t work out. Take, for example, the possibility of palimony. Unlike “alimony,” palimony is not a legal term and it’s not usually something awarded in family court. Instead, it’s a remedy that civil courts will award in about half the states if one member of an unmarried couple can show there was an agreement in place that the other member of the couple would provide support if the relationship didn’t last.

Factors that courts will consider in awarding palimony include whether or not the couple lived together, how long the relationship lasted, promises that can be proven, sacrifices made by one partner, such as putting the other partner through school or giving up a career to take care of children, or the ability of each partner to support themselves. Some states may be fairly lenient in recognizing the rights of unmarried partners.

Take, for example, a recent New Jersey case. An unmarried couple bought a home together in 2012. The home and mortgage were exclusively in one partner’s name, but the other partner kicked in much of the down payment and was the one who was most involved in the transaction. The couple never legally married. When they broke up, despite having no written cohabitation or palimony agreement, the court ordered “partition” of the home. In other words, it ordered that the home be sold and the proceeds divided and it did so as an “equitable” remedy out of fairness to the partner who may not have held title to the home but did a lot of work to secure it, maintain it and enhance its value.

A majority of states don’t recognize palimony at all. But they still will generally enforce a written cohabitation agreement drawn up between unmarried partners laying out exactly what each partner is entitled to in the event of a breakup. In addition to financial support, such an agreement can address who keeps the house, the car or even the pets and can allow partners to appoint one another to make important medical, legal or financial decisions on the other partner’s behalf should one of them lose the ability to make such decisions. Agreements like this are a good idea in any long term domestic partnership to provide both partners with a sense of stability and security. If you are considering such an agreement, it’s important to consult with a family law attorney to ensure it covers all issues worth considering and that it’s written in a way that a court will enforce. Ideally, each partner will have their own attorney when negotiating and drafting such an agreement. That way a court is more likely to be satisfied that it was negotiated fairly, with each partner enjoying comparable bargaining power and having their interests fairly represented.

 

 

Modern Love Clouds End Of Alimony

Many divorce agreements say that a spouse can stop paying alimony if the other spouse remarries or begins living with a romantic partner. That sounds simple – but in today’s world, romantic relationships can be anything but simple. Sometimes, as on Facebook,
the best way to describe a new relationship is “it’s complicated”– and whether a spouse can stop paying alimony can be complicated, too.  Here are some examples:

Steven and Lorraine Robitzski divorced in 2004, and Steven was ordered to pay Lorraine $2,500 a month in alimony, unless she cohabited with someone. Lorraine found a new boyfriend,and Steven went to court claiming that they were living together.  According to Steven, Lorraine and her new beau spent about 100 nights a year together, they held themselves out as a couple at family and social activities and on Facebook, and the couple’s children referred to the boyfriend as “Pap Thom.” But a New Jersey appeals court said this wasn’t “cohabitation.” The court said there was no evidence the couple shared a home, that their finances were intertwined, or that the boyfriend was financially supporting Lorraine. There was also no evidence that they shared household chores (although the boyfriend did help Lorraine to shovel snow).  As a result, Steven must continue to pay, although a judge said he could try again if he could find more evidence of cohabitation.

Next door in Delaware, though, the state’s highest court reached a different result. Joseph Paul claimed he could stop paying alimony to his ex-wife Shannon because she was cohabiting with a new boyfriend named Fletcher. Joseph hired a private investigator to tail Shannon and Fletcher, and the investigator saw Fletcher’s car at Shannon’s house on 25 out of 37 days. He also spotted Fletcher doing domestic chores for Shannon,including feeding her cat, taking out the trash, and doing yardwork.Also, he saw Fletcher using her garage code.  On the other hand, the couple had separate homes, and Fletcher didn’t keep any clothes or other personal property at Shannon’s. The couple also pursued different activities during the day.  But the Delaware court said this was enough to end Joseph’s alimony obligation, because Shannon and Fletcher were living together “with some degree of continuity.”

Yan Assoun’s 1997 divorce decree ordered him to pay alimony of as much as $380,000 a year unless his wife Anais remarried. The decree didn’t mention cohabitation – but when Anais moved in with a new boyfriend, Yan went to court and argued that living together counted because it amounted to an “informal” marriage.

Anais and the new boyfriend acknowledged that they lived together as husband and wife, and held themselves out to others as a married couple. But a Texas appeals court said that wasn’t good enough – unless the couple were actually legally married, or had agreed to get legally married, Yan was still on the hook for the alimony payments.

David and Cathleen Quinn divorced in 2006, and David was ordered to pay $68,000 a year in alimony. The divorce agreement said that the alimony would end if Cathleen started cohabiting with someone.

In 2008, Cathleen got a new boyfriend, and David asked to stop paying alimony. Although Cathleen and the boyfriend maintained separate homes, a judge determined that they did so only for the sake of appearances, and the couple were in fact cohabiting.

In 2010, Cathleen broke up with the boyfriend. This time, a judge said that since Cathleen was no longer cohabiting with someone, David should have to resume paying alimony.

But the New Jersey Supreme Court disagreed. It said that under the divorce agreement, once Cathleen started living with someone else, alimony was “terminated.” There was nothing in the agreement that said alimony could be started up again if Cathleen dumped her boyfriend. Therefore, David was permanently free of alimony, and Cathleen lost both her boyfriend and her support payments.

Chester Chin’s older divorce agreement said he could stop paying alimony if his wife remarried, but it didn’t mention cohabitation. However, in 2011, Massachusetts enacted a new law saying alimony could be ended if the recipient started living with a romantic partner.

Chin went to court and said he could stop paying because his wife was cohabiting. But he was out of luck, because the Massachusetts Supreme Court said the new law didn’t apply to divorce settlements that were signed before it went into effect.

As you can see, when it comes to cohabitation issues, “it’s complicated.” We’d be happy to help you if you have any questions about how the law applies to your situation.

-Rob Hagy, Charlottesville Divorce and Spousal Support Attorney,  If you have any questions, please feel free to contact me at (434)293-4562 or [email protected].

 

Should I Stay Or Should I Go?-More Spouses Are Living Together While They Are Divorcing — But Is This Wise?

It's an age old question, well it's been a question that's been asked since at least 1982 when the Clash's hit album Combat Rock with the rock anthem "Should I Stay or Should I Go" was released. :)

The first step in a divorce is usually for one member of the couple to “walk out.” But increasingly, divorcing spouses aren’t walking out at all – they’re staying put. In fact, it’s been estimated that as many as one-half of all separating couples today live together in the midst of their divorce proceedings. And some couples even live together temporarily after they’re officially divorced.

Here’s a look at some of the reasons for this trend, as well as the potential drawbacks.

The biggest reason for living together during divorce is economic – these are tough times for many people, and it can be difficult to suddenly have to afford two separate households, with separate payments for rent, mortgage, utilities, groceries, and other household expenses. Many couples decide to keep living together for a while so they’ll have time to save up for when they have to start financially separate lives.

This is especially true in areas where the housing market isn’t strong. For many couples, the best way to afford to live apart is to sell their house. But if the housing market is weak, a couple might decide to continue living in their home for a while in hopes that its value will go back up.

Some couples who are planning to get divorced continue living together for a time because of the children. In many cases, the spouse who “walks out” may be the spouse who sees less of the kids, at least for a while, so some spouses refuse to leave for this reason. And some couples want to soften the blow for their children, and provide them with a more gradual transition while maintaining their home routines.

Some spouses might have a strategic reason for staying put. They might want to get the house in the divorce, and believe that they’re more likely to be awarded the property if they’re currently living in it. And they might think that by refusing to leave, they can put pressure on the other spouse to settle the divorce quickly or on more favorable terms, so the other spouse can get on with his or her life.

Of course, whether all this will work depends on the couple and how bad their relationship has become. In many cases, trying to live together can backfire dramatically.

For instance, if a divorcing couple’s finances are difficult, chances are they fought a lot about money during the marriage. They might end up fighting even more if they’re separating but living together.

Instead of just fighting over whether to make a home repair, for example, they might now also fight over who should pay how much toward the cost, with the spouse who doesn’t want the repair refusing to contribute his or her portion. There could be other disputes over all sorts of shared household expenses, especially if one spouse earns significantly more than the other. In the end, the problems caused by these arguments could be more costly than simply living separately.

As for the children, divorce is likely to be distressing for them no matter what. Living together for a while may soften the blow, but it could also make it worse, by creating confusion and delaying their ability to fully adjust to a new family situation. This is especially true if you’re likely to fight with your spouse while you’re living together.

Staying put for strategic reasons can backfire, too. While a spouse might cave in to the other spouse’s demands in order to get him or her to leave, a spouse might also dig in and fight harder, making the divorce process longer and more expensive.

Living together also creates a number of logistical complexities. For instance, will the couple physically divide up the living space? Will each spouse have particular rooms as their own space, that the other person can’t access? And what if one spouse decides to date someone else? Can he or she bring a date to the home?

Finally, you should know that if you’re still living together, even if you’re planning to divorce, you might not be considered “separated” in the eyes of the law – which could affect how a court ultimately divides up your property.

So if you’re wondering, “Should I stay or should I go,” the best bet is to talk to a family lawyer who will help you carefully consider all your options.

Massachusetts Law Would Forbid Divorcing Parents From Having Sex In Home.

I came across this article from the Boston Globe about an unusual bill that has been proposed by the state legislature.

-Charlottesville Divorce Lawyer Rob Hagy.  For more information, call to schedule an appointment at (434)293-4562.

Charlottesville Divorce and Spousal Support Lawyer Rob Hagy: Former Wife And Man She Was Dating Were Not Cohabiting.

In the case of Smallwood v. Smallwood, the North Carolina Court of Appeals held that the trial court did not err in concluding that former wife and man she was dating did not voluntarily assume those rights, duties, and obligations which were usually manifested by married people, for purposes of former husband's cohabitation defense to former wife's request for alimony; while the court did determine that former wife and the man engaged in some domestic activities, it did not find an assumption of marital rights and duties extending beyond those found in an intimate friendship, such as joint financial obligations, sharing of a home, combining of finances, pooling of resources, or consistent merging of families.

North Carolina law defines, by statute, "cohabitation" as the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations. . . . In order to “find cohabitation, there must be evidence of: (1) a ‘dwelling together continuously and habitually’ of two adults and (2) a ‘voluntary mutual assumption of those marital rights, duties, and ‘obligations which are usually manifested by married people.’”

In Virginia, “‘the term “cohabit” means to live together in the same house as married persons live together, or in the manner of husband and wife.’” Cranwell v. Cranwell, 59 Va. App.155, 161, 717 S.E.2d 797, 800 (2011) (quoting Schweider v. Schweider, 243 Va. 245, 248, 415 S.E.2d 135, 137 (1992)). Indeed, “[t]he requirement that the payee ex-spouse and that party’s paramour be shown to have established and shared a common residence is firmly established in Virginia case law.” Pellegrin v. Pellegrin, 31 Va. App. 753, 764, 525 S.E.2d 611, 616 (2000)(citing Schweider, 243 Va. at 248-49, 415 S.E.2d at 137; Petachenko v. Petachenko, 232 Va. 296, 299, 350 S.E.2d 600, 602 (1986); Frey v. Frey, 14 Va. App. 270, 275, 416 S.E.2d 40, 43 (1992)). “Thus, if two individuals do not share a common residence, they are not cohabiting. Although ‘proof of a common or shared residence does not itself establish cohabitation,’ sharing a common residence is a ‘requirement’ for cohabitation.” Cranwell, 59 Va. App. at 162, 717 S.E.2d at 800 (quoting Pellegrin, 31 Va. App. at 764, 525 S.E.2d at 616).  If the finder of fact concludes that two individuals have not established and shared a common residence, then there is no need to perform further analysis or consider additional factors—the two individuals are not cohabiting.

This is not the first time I’ve addressed the issue of cohabitation in spousal support cases here at the Charlottesville Divorce Lawyer Blog.  Please click here, here, here, here, and here for more information.

-Rob Hagy, Charlottesville Divorce and Spousal Support Lawyer.  For help with your spousal support issues, please contact me at (434)293-4562 or email me at [email protected]. 

 

Ex-Wife Was Not Cohabiting With Boyfriend And Gets to Keep Spousal Support.

In the case of Harris v. Harris, an ex-wife was able to keep her spousal support after her ex-husband failed to prove that his ex was cohabiting with her boyfriend.  The boyfriend spent one or two days a week at the ex-wife's house and sometimes went for several weeks without visiting the ex-wife.  The boyfriend kept his motorcycle and snowblower at the ex-wife's house, but did not keep any clothes there and maintained a separate residence.

-Rob Hagy, Charlottesville Divorce Attorney and Charlottesville Spousal Support Attorney.  For help please call me at (434)293-4562 or email me at [email protected]. 

A Long Distance Relationship Did Not Constitute Cohabitation For the Purposes of Terminating Spousal Support.

In the case of Cranwell v. Cranwell, the Virginia Court of Appeals, in an unpublished opinion, held that a longstanding romantic relationship between a wife and her boyfriend who lives on the West Coast was not cohabitation.  Wife is a flight attendant and only visits the boyfriend occasionally.  She does not have a key to his apartment and vice versa.  While they each store a few personal items at the other's residence, the combination of the foregoing do not amount to cohabitation.  A good Charlottesville Divorce Lawyer or Charlottesville Spousal Support Lawyer will know that cohabitation in violation of an agreement prohibiting such cohabitation or even in the absence of an agreement where it lasts for a year will justify the termination of an award of spousal support unless it would be unconscionable to do so.

New Study Says That Cohabitation Harms Children.

The University of Virgina's National Marriage Project and the Institute for American Values issued a report this week titled "Why Marriage Matters." This report determines that children living in cohabiting households don't do as well socially, educationally or psychologically as children living in intact married households.  In Virginia (and more specifically in the Albemarle and Charlottesville area), Judges can and frequently do consider whether a parent is cohabiting when deciding a custody and visitation case.  Before cohabiting, a parent should call his or her divorce lawyer.  If you are about to cohabit, consider the matter seriously before you do.  It could have a serious affect on your relationship with your children.

-Rob Hagy

Mother Was Not in Contempt for Cohabiting or Failing to Notify Father of Medical Appointments

In the case of Stotler v. Duvall, the Virginia Court of Appeals, in an unpublished opinion, upheld a trial court ruling refusing to fnd a mother in contempt of court.  Father asserts that (1) mother should have
been held in contempt for violating the court's verbal order requiring her to inform father of the
child's doctor's visits; (2) the court erroneously considered his incarceration in deciding the
show cause motion; (3) a violation of the court order was sufficient to find the mother guilty of
contempt; (4) mother should have been held in contempt for violating the court's order
prohibiting overnight guests of the opposite sex; and (5) mother should have been sentenced to
jail. 

On August 28, 2006, the City of Winchester Circuit Court entered a final custody and
support order (order).  Among other rulings, the order held that neither party would have
unrelated, overnight guests of the opposite sex while the child was present.  The order further
held that mother was to file petitions for child support for her other three children and she was to
notify father of any change of address.

The trial court found that mother filed the required child support petitions, so she no longer was in violation of the order.  Her verbal representations that she had done so were sufficient; no written proof was required.  The trial court further found that mother had violated the order regarding cohabitation, but her boyfriend was deceased and she was living with her mother.  The trial court did not impose a jail sentence for mother because then both of the child's parents would be in jail, and the child would be forced to go
into foster care. Father argues that mother should be held in contempt for violating what he claimed to be a verbal order of the court to inform him of the child's medical appointments.  However, a trial court
speaks through its written orders.  There was no written order for mother to inform father of the child's medical appointments.

PSA Mortgage Payments Stop Upon Cohabitation

In the case of Stacy v. Stacy, the Buchanan County Circuit Court held that, although the parties' 2001 property settlement agreement in their divorce decree had wife waiving spousal support and husband continuing mortgage payments on the marital residence "for the benefit of wife … in the nature of support," it could terminate husband's mortgage-payment obligation upon wife's admission to cohabitation under Va. Code § 20-109(A).