Virginia Supreme Court

Virginia Supreme Court building in Richmond.

The Supreme Court of Virginia has ruled that a Fairfax County man can stop paying spousal support to his ex-wife because she lives with another woman, reversing lower courts that found the state’s cohabitation standard does not apply to same-sex couples.

The ruling, handed down late last week, clarifies a section of Virginia divorce law nearly a year after same-sex marriage became legal nationwide.

The case stemmed from the separation of Michael Luttrell and Samantha Cucco, who divorced in 2008 after being married for 16 years. Luttrell agreed to pay alimony to Cucco for eight years.

Under state law, alimony payments can be cut off if the payee remarries or has been “habitually cohabitating with another person in a relationship analogous to a marriage” for a year or more.

Luttrell sought to end the payments in 2014. He said in court filings that Cucco was engaged to her new partner and had been living with her for more than a year.

Cucco argued her situation did not qualify as cohabitation because the relationship was with another woman.

Both Fairfax County Circuit Court and the Virginia Court of Appeals ruled in Cucco’s favor; the courts found that cohabitation was understood to apply only to relationships between a man and a woman.

The state Supreme Court reversed the lower courts and said their interpretation would produce an “untenable result” of unequal treatment in identical divorce situations.

“The individual in the same-sex relationship would continue to receive support while the individual in the opposite-sex relationship would not,” Justice William C. Mims wrote in the high court’s opinion. “We cannot conclude that the General Assembly intended such a result.”

Mims was serving in the legislature in 1997 when the alimony statute at the heart of the case was amended.

Mims noted in the opinion that the General Assembly considered language clearly defining cohabitation as only pertaining to the opposite sex, but that amendment was rejected in favor of the broader language in the law today.

“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,” he wrote.

John P. O’Herron, a Richmond appellate attorney who tracked the case, said it was somewhat unusual because Cucco did not contest the appeals above the circuit court.

Though the case pertains to new legal questions posed by gay marriage, O’Herron said the ruling likely will affect only the specific issue in divorce law.

“I really don’t see this as sort of altering the landscape,” he said.

The ACLU of Virginia represented Luttrell in the case. Gail Deady, an ACLU of Virginia lawyer focused on gender equality, said the ruling recognizes that “all laws regarding marriage must be applied equally regardless of the gender of the individuals involved.”

“Marriage equality means marriage equality,” Deady said.

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