Not Paying for the Rest of Your Life - Terminating Spousal Support in Virginia

As always, before reading this blog post, please review my disclaimer by clicking on the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

If you've been ordered to pay spousal support (formerly known as "alimony") as a result of your divorce in Virginia, you probably have one question - when can you stop?  The answer to that question is somewhat complicated, and depends in part on whether your support was agreed to or court ordered, whether or not the reason you want payments to stop is "self-executing," and whether there are any lingering issues.

In this blog post, I am going to do a basic overview of the law regarding the termination of spousal support.  Please note that I am referring to spousal support ordered as part of a divorce (either by the court or by contract) - not spousal support ordered in the J&DR Court, Separate Maintenance, or pendente lite spousal support (for more on the different types of spousal support, see my blog post on the subject).

What can cause spousal support to be terminated?

So, to start off, you might want to know in what situations existing spousal support can be terminated.  There are, in fact, seven situations in which ongoing spousal support terminates:

1. The support payor dies;
2. The support payee dies;
3. The support payee remarries;
4. The support payee cohabits with another "in a relationship analogous to marriage" for more than one year;
5. If support was ordered for a defined duration, the defined duration ends;
6. There has been a "material change of circumstances" since the original support order and the court orders support eliminated; or
7. Another condition set in the parties' agreement has occurred.

So, where does all of this come from?  Numbers 1 through 4 are found in Virginia Code Section 20-109.  Number 5 is a natural result of a court being authorized to order or the parties being authorized to agree to a defined duration of support.  Number 6 is a result of the court's power to modify support (also found in Code Section 20-109).  Number 7 is a result of parties' power to set support by agreement in a manner the court must honor.

Exceptions to spousal support termination

So, as you might imagine, all of the above have exceptions.  Numbers 1 through 4 can be waived by agreement (note, however, that unlike most issues with spousal support in agreements, waiving numbers 1 through 4 can only be accomplished expressly - such as by saying, for example, "spousal support will not terminate upon remarriage of the payee" - silence, or even saying something like "spousal support cannot be modified or terminated except as stated in this agreement" keeps numbers 1 through 4 in effect).  Number 5, if the support was set by a court order, can be overcome because defined duration support can be extended to a longer duration or to indefinite support if a motion to modify is filed prior to the expiration of the support and the court grants it.  Number 6 is not available for support set by agreement unless the agreement expressly allows for it.  Number 7 is only available in support set by agreement.

One of the terminating conditions has occurred - now what do I do?

So, say you think one of the terminating conditions has occurred - you might be wondering what you do next.  Well, that depends in part on whether or not the termination is what we call "self-executing."  A termination event is self-executing if its occurrence is obvious and indisputable - if there can be no reasonable argument as to whether or not something has occurred.  In the list above, numbers 1, 2, 3 and 5 are always self-executing (so long as they are applicable to your case), while Numbers 4 and 6 are never self-executing.  Number 7 can be self-executing, or it can not be, depending on how the agreement is written.

If you are dealing with a situation that involves self-executing support termination, you are free to simply stop paying when the event occurs.  However, if you are dealing with a situation that is not self-executing, you must file for your termination in court, and continue paying until the court rules you no longer have to.  If you stop paying, even after a terminating event has occurred, if it is not self-executing you can be found in contempt of court and rack up a substantial arrearage (the court can only make the termination date effective the date you filed your motion, no earlier).

Now, I would note that last year we saw a Court of Appeals opinion that reigned in the harshness of the non-self-executing rule, but it was vacated when a motion to rehear was granted, and the parties settled before rehearing, so the Court of Appeals opinion actually is not good law right now and there's no guarantee a different panel of the Court of Appeals would reach the same conclusion (even that panel was a 2-1 decision), so we must assume that the rules regarding non-self-executing terminations remain in effect.

How to file the motion

If you are dealing with a situation that solely involves termination of support (say number 4 above, or one of the conditions laid out for termination in an agreement that isn't self-executing), then you file a "Motion to Reopen and Terminate Spousal Support."  If, however, your reason for wanting support to terminate could also be a reason for wanting it to be reduced if the court determines termination isn't proper (such as in most cases where number 6 above would apply), you should file a "Motion to Reopen and Terminate or Reduce Spousal Support."

Reasons to go to court with self-executing terminations

Now, despite what I said about above self-executing termination events, the reality is there are some situations where you might want to go to court anyways.  First and foremost, if you believe a self-executing termination event has occurred (such as the payee's remarriage) but you are wrong, you could be hit with contempt and a large arrearage.  If you file in court to get an order terminating your support, you'll be protected from that possibility.

That being said, there are a couple other reasons to potentially go to court even with a self-executing termination.  For example, if the reason your support is terminated is because your ex has re-married, you may have a claim to get some of your previously paid support back.  Specifically, Virginia Code Section 20-110 places an affirmative duty on a payee former spouse to tell the spousal support payor if he or she remarries.  If the payee spouse fails to inform you of the remarriage, and as a result you make payments after the remarriage, you are entitled to be reimbursed those payments plus interest, costs and attorneys' fees.

Another reason is that if you ever fell behind on your payments or your ex ever claims that you missed a payment and you and your ex do not agree on how much you still owe, you may want to get a court order terminating your support since it will also establish what arrearage, if any, you owe and how and when it is to be paid.

Conclusion

Terminating spousal support is almost as complicated as establishing it.  Doing it without an attorney can set you up for a whole lot of trouble.  If you are paying spousal support and think it should terminate (or if you are receiving it and your ex has stopped paying improperly), please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!