Virginia: Cohabitation – a Lawyer’s Proof

Virginia: Cohabitation – a Lawyer’s Proof

The companion cases in Routson v. Routson, Nos. CL09-2283 and CL09-2620 in Circuit Court for York County and Poquoson, Virginia, are consolidated for trial. At issue in these special cases are roughly $200,000.00 in tax-free disability payments, the entitlement to which turns on cohabitation.

Va. Code Ann. §20-109(A) requires proof of cohabitation by “clear and convincing” evidence. But it is well settled that in an action on a Property Settlement Agreement (“PSA”) which does not reference §20-109(A), as in the special case of Routson, “husband’s burden was to prove by a preponderance of the evidence that wife habitually cohabitated with another person in a relationship analogous to a marriage for one year or more, not to prove cohabitation by clear and convincing evidence.” O’Hara v. O’Hara, 45 Va. App. 788, 796 (2005)(reversed, vacated, and remanded for applying the incorrect evidentiary standard).

On appeal after remand in O’Hara, the Court of Appeals affirmed the trial court finding the requisite one-year habitual cohabitation by a preponderance of the evidence, despite the relationship being “dysfunctional”. Wife and boyfriend testified that he used her address as his on numerous document and that they were sexually intimate, resided together “on and off” over three years, and lived together continuously for only 10 months. O’Hara v. O’Hara, 2006 WL 1814849 (Va. App. Jul. 5, 2006)(unpublished).

Subsequently, the Court of Appeals found disqualifying cohabitation “as a matter of law” after analyzing the following four “non-exclusive” factors: (1) common residence; (2) intimate or romantic involvement; (3) provision of financial support; and (4) duration and continuity of the relationship and other indicia of permanency. Stroud v. Stroud, 49 Va. App. 359 (2007)(“Stroud I”). Significantly, even though the PSA required cohabitation “for a period of thirty (30) or more continuous days,” Stroud I still found a “common residence” where the couple simply “spent five nights a week for over a year” together and only “spent 34 consecutive days, with the exception of the four-day business trip”. Id. at 373-374. “Intimate or romantic involvement” was satisfied by sexual acts and an exchange of rings. Id. at 374. Notably, Stroud I found “provision of financial support” where the non-owner lived residentially for free, thereby being able to rent out another property. Id. Finally, “duration and continuity of the relationship and other indicia of permanency” was established by a long relationship of about three years, ring exchange and some co-parenting. Id. at 374-375. Nonetheless, Stroud I emphasized that a finding of cohabitation “must be based upon evidence concerning the overall nature of the relationship, not merely a piecemeal consideration of individual factors”. Id. at 376-377.

Following Stroud IWaugh v. Waugh, 2009 Va. Cir. LEXIS 43 (Fairfax Jun. 25, 2009) recently found disqualifying cohabitation – even under §20-190(A)’s elevated “clear and convincing” evidence standard. Like the ex-wife in the special case of Routson, the ex-wife in Waugh “places a heavy emphasis on the lease agreement between her and [her live-in] and argues that this agreement is probative of the fact that there is no financial support between her and [him].” Id. at *12-13. Waugh emphasized that “the Court of Appeals has stated that financial support is merely one factor that may make a living arrangement ‘analogous to a marriage.’ See, Frey v. Frey, 14 Va. App. 270, 272, 416 S.E. 2d. 40, 42, 8 Va. Law Rep. 2606 (Va. Ct. App. 1992).” Id. at *13. Moreover,Waugh analyzed that the live-in’s monthly rent payment provided the owner money to pay bills; and that the live-in’s rent had not increased and financially was the best living situation available. Id. at *14. “Thus, as both persons received a substantial economic benefit from the living situation, Husband has [proved] that Wife and [her live-in] provide financial support for one another.” Id.