What is the Definition of Cohabitation in Virginia?
Full Question:
Answer:
The answer will be a matter of subjective determination fior the court based on all the circumstances involved. Separation and living apart typically implies not residing under the same roof. Most courts require the parties to live at separate addresses to be considered living apart. Generally, a court will not consider a couple separated when they are living under the same roof. Separation means residing and sleeping in different locations at all times. Separate bedrooms in the same house do not constitute a separation. Cohabitation is not a term specifically defined by statute, but is typically considered the state of living together as if in a marital relationship. Conjugal relations is not necessarily required in order to find that a couple is cohabiting. It is possible to be considered still in a marital relationship despite sleeping in separate bedrooms.
Virginia statutes state that a divorce may be granted “On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without
interruption for one year.” The VA courts have found that the term "cohabit" means "to live
together in the same house as married persons live together, or in the manner of husband and wife." Johnson v. Commonwealth, 152 Va. 965, 970, 146 S.E. 289, 291 (1929). While engaging in sexual relations is a factor in determining cohabitation, "'matrimonial cohabitation' consists of more than sexual relations. It also imports the continuing condition of living
together and carrying out the mutual responsibilities of the marital relationship." Petachenko v. Petachenko, 232 Va. 296, 299, 350 S.E.2d 600, 602 (1986); see Colley v. Colley, 204 Va. 225, 228-29, 129 S.E.2d 630, 632 (1963).
Please see the following VA case:
PENROD v. PENROD, 29 Va. App. 96 (1999)
510 S.E.2d 244
BETTIE W. PENROD v. JAMES E. PENROD
Record No. 0650-98-4
In the Court of Appeals of Virginia.
Alexandria.
February 2, 1999
APPEAL FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Marcus D.
Williams, Judge.
Page 97
Thomas P. Mains, Jr. (Mains & Mains, L.C., on brief), for
appellant.
David D. Masterman (Condo & Masterman, P.C., on brief), for
appellee.
Present: Judges Annunziata, Lemons and Senior Judge Hodges.
OPINION BY JUDGE WILLIAM H. HODGES.
Bettie W. Penrod (wife) appeals the decision of the circuit
court terminating her spousal support payments. Wife contends the
trial court erred when it found that James E. Penrod (husband)
established that she cohabitated with a man for more than sixty
consecutive days so as to be "remarried" under the terms of the
parties' separation agreement. Finding no error, we affirm the
decision of the trial court.
Under familiar principles, "we construe the evidence in the
light most favorable to husband, the prevailing party below,
granting to him all reasonable inferences fairly deducible
therefrom." Rogers v. Yourshaw, 18 Va. App. 816, 818,
448 S.E.2d 884, 885 (1994) (citation omitted).
A separation agreement . . . is a contract and must
be construed as such. Where the agreement is plain
and unambiguous in its terms, the rights of the
parties are to be determined from the terms of the
agreement and the court may not impose an
obligation not found in the agreement itself.
Jones v. Jones, 19 Va. App. 265, 268-69, 450 S.E.2d 762,
764 (1994). "[O]n appeal if all the evidence which is necessary
to construe a contract was presented to the trial court and is
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before the reviewing court, the meaning and effect of the
contract is a question of law which can readily be ascertained by
this court." Fry v. Schwarting, 4 Va. App. 173, 180,
355 S.E.2d 342, 346 (1987).
Wife and husband entered into a property settlement agreement
in December 1987 in connection with their divorce and separation.
The trial court ratified, affirmed, and incorporated the
agreement into the final decree of divorce. The court entered
that decree on December 31, 1987. In pertinent part, the
agreement provided:
12. The Husband shall pay to the Wife as and
for her support and maintenance the sum of Five
Hundred Dollars ($500) per month, commencing on the
thirtieth (30th) day of the month in which this
Agreement is fully executed. The payments shall
continue thereafter on the thirtieth (30th) day of
each and every month until the Husband's obligation
to provide child support pursuant to paragraph
11(b) ceases, at which time the amount the Husband
shall pay to the Wife as and for her support and
maintenance shall increase to Eight Hundred Dollars
($800) per month. The Husband's obligation to pay
spousal support is nonmodifiable as to amount and
shall continue until the Wife remarries, dies, or
until the Husband's death, whichever event occurs
first. For the purposes of this Agreement, the
Wife shall be deemed to have "remarried" in the
event she cohabits and lives with a member of the
opposite sex in a sexual relationship without the
benefit of marriage for a period in excess of sixty
(60) consecutive days.
The underlined phrases were handwritten and initialed additions
to the typed agreement. The closing phrase "or with the same
individual for a period in excess of thirty (30) days during a
consecutive twelve (12) month period" was crossed out.
On December 1, 1995, husband filed a motion to terminate
spousal support and for restitution based on fraudulent receipt
of spousal support. Husband alleged that wife committed fraud by
cohabiting with Gerald Hardman. At a March 4,
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1998 hearing, husband and a private investigator testified. The
parties also introduced the depositions of wife, the parties'
eldest daughter, and Hardman's oncologist.
The uncontested evidence established that wife lived in a house
owned by Hardman in Virginia after the parties divorced. Wife
relocated to Florida in 1989. Hardman moved to the same area.
Wife maintained an apartment in Florida but kept "valuable" items
at Hardman's home. Wife stayed at Hardman's house three or four
nights a week during the period through 1995, often sleeping in
the same bed. Wife could be reached by telephone at Hardman's
home, not at her apartment. Wife had keys to Hardman's home. Wife
displayed her family photographs at Hardman's home. One of the
parties' daughters lived in wife's apartment and paid the
utilities, although wife paid the mortgage. Wife and Hardman
vacationed together, largely, if not entirely, at Hardman's
expense.
Husband testified that wife admitted she had at least one
sexual encounter with Hardman during the parties' marriage. Wife
denied ever having a sexual relationship with Hardman, although
she admitted that Hardman was not seeing anyone else. In his
deposition, Hardman's oncologist stated that Hardman reported
having sex every two weeks in January 1994, but said the
frequency had dropped to every three weeks by May 1994 following
Hardman's treatment for prostate cancer. Hardman's medical file
also contained a notation dated November 1994 in which Hardman
reportedly told his doctor that he lived with a friend who would
lose alimony if they lived together for more than sixty days,
that it was a friendship only and not a sexual relationship, and
that he would like his records if requested.
Wife contended that Hardman's home was larger and more secure
than her apartment. She admitted that she was conscious of the
restriction in the parties' agreement and denied ever
cohabitating with Hardman for sixty consecutive days.
In Schweider v. Schweider, 243 Va. 245,
415 S.E.2d 135 (1992), the Virginia Supreme Court stated that "the term
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`cohabit' means `to live together in the same house as married
persons live together, or in the manner of husband and wife.'"
Id. at 248, 415 S.E.2d at 137. The Court further stated
that "[w]hile engaging in sexual relations is a factor in
determining cohabitation, "matrimonial cohabitation" consists of
more than sexual relations. It also imports the continuing
condition of living together and carrying out the mutual
responsibilities of the marital relationship.'" Id.
(citation omitted). The parties' agreement in Schweider
provided that spousal support would terminate upon wife's
remarriage, which was defined to include "`the wife's permanent
cohabitation with a male as if to all appearances they were
otherwise married.'" The evidence in Schweider proved
that wife and her live-in companion purchased a home together,
shared the master bedroom and closet, shared mortgage and utility
expenses, and had a sexual relationship. The trial court found
that wife's permanent relationship with her companion was a
matter of economic necessity and that they acted more like
roommates than spouses. The Supreme Court reversed the trial
court's decision, finding that the undisputed evidence
established that wife's relationship was a "remarriage" for
purposes of the parties' agreement. "We cannot conceive of what
conduct the husband and the wife contemplated if that conduct did
not include at least the wife's sharing a bedroom with another
man for a substantial amount of time since 1988." Id.
at 250, 415 S.E.2d at 138.
In Frey v. Frey, 14 Va. App. 270, 416 S.E.2d 40
(1992), the wife had a sexual relationship with her live-in
companion but maintained separate finances. We reversed the trial
court's finding that the phrase "`cohabitation, analogous to a
marriage' necessarily require[d] an agreement or arrangement
between the [wife and her live-in companion] . . . in regard to
financial support." Id. at 272, 416 S.E.2d at 41. We
held
that the phrase, "cohabitation, analogous
to a marriage," means a status in which a
man and woman live together continuously,
or with some permanency, mutually assuming
duties and obligations normally attendant
with a marital relationship. It involves
more than living together for a
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period of time and having sexual relations,
although those factors may be significant;
"[i]t also imports the continuing condition
of living together and carrying out the
mutual responsibilities of the marital
relationship."
Id. at 275, 416 S.E.2d at 43 (citations omitted).
Here, credible evidence supports the trial court's finding that
wife and Hardman were involved in an ongoing relationship
analogous to marriage. To a private investigator posing as a real
estate buyer interested in buying Hardman's house, wife described
herself as living in Hardman's house for the past four or five
years. Wife admitted staying at Hardman's house three or four
times a week over a period of years, sleeping in the same room
and sometimes in the same bed. Wife also admitted that she kept
numerous items of personalty, including clothing, at Hardman's
home. Hardman and wife vacationed together, usually at Hardman's
expense. Hardman gave wife gifts, including a diamond ring. While
wife testified that the relationship with Hardman was not sexual,
other evidence which the trial court found more credible
indicated that Hardman and wife were involved in a long-term
intimate and monogamous relationship. Wife admitted in her
deposition that she consciously caused breaks in the time she
stayed at Hardman's home because of the "sixty consecutive days"
requirement in the parties' agreement. The trial court found that
wife returned to her separate apartment for a portion of each
week in an attempt to circumvent the language in the parties'
agreement triggering the cessation of spousal support.
A finding of "cohabitation" must be based upon evidence
concerning the overall nature of the relationship, not merely a
piecemeal consideration of individual factors such as its sexual
or financial components. Viewed as a whole, the trial court found
that wife's long-term relationship with Hardman amounted to
cohabitation and living in a sexual relationship for a period in
excess of sixty consecutive days. That finding is supported by
credible evidence. Therefore, pursuant to the parties' agreement,
wife was no longer entitled to spousal support.
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Accordingly, the decision of the circuit court is affirmed.
Affirmed.