Martha Dandridge Custis, poor woman, was married to her first husband a mere seven years before he up and died on her, leaving her — at the tender age of 25 — with two small children. Well, we say poor woman, but Daniel Parke Custis left her a pile of money, real estate, and other property. She was quite the catch. A wily Virginian named George caught her and became her second husband, in 1759. Though she could have given makers of monogrammed bath sheets conniptions with Martha Dandridge Custis Washington (so many letters!), she went with the simpler and eternally elegant Martha Washington1. If the wife of the Father of Our Country could enjoy a second marriage, so can your ex-wife, and you could benefit from it.
Ways to End Spousal Support
If you want to commemorate the moment when you learn that you can be free of spousal support, have “§ 20-109” embroidered on a nice pique polo shirt. That is the section of the Code of Virginia that offers not one, but two ways to end spousal support:
- Your ex-wife cohabitates with “another person in a relationship analogous to a marriage for one year or more;” or
- Unless (for some bizarre reason) you arrange otherwise by stipulation or contract, your spousal support and maintenance terminates upon the death of either party or remarriage of the spouse receiving support
Notice the wording of the first part. Your ex-wife — who has previously shown no predilection for a same-sex partner — could move in with another woman and you and your attorney could make the argument that she is cohabitating akin to a marriage. The judge may not be convinced, but your attorney may be willing to try this if it could save you months (if not years) of spousal support payments.
… Well, Unless it’s “Unconscionable”
Your ex-wife’s attorney may bring up another aspect of § 20-109 that you need to be prepared to fight. The same subsection that could take her off the spousal support gravy train could be used by her attorney to keep the train rolling:
“… the court shall terminate spousal support and maintenance unless … the spouse receiving support proves by a preponderance of the evidence that termination of such support would be unconscionable.”
Your ex-wife may try to convince a court that she simply cannot go on without the monthly payments you provide, even if she has found the one true (and ostensibly broke) love of her life. She can attempt to show the court that she needs your additional income to keep her in the same standard of living she had when you were married. Perhaps she remarries and joins herself to a guy who took a vow of poverty, for example. It is all right for him to go without a 60” flat screen TV, but if she enjoyed such a luxury in your marriage, you may have to pay to keep her livin’ large on your dime.
Unemployed & Under-employed Spouses (and their New Husbands)
If your ex-wife deliberately avoids work, or her new husband avoids work, to justify the continuation of your spousal support, you can present evidence to the court that she or he is “voluntarily unemployed or voluntarily under-employed,” according to another part of Code of Virginia, § 20-108.1. The law does not require you to pay for their laziness, in other words. She would have to show the court why her new husband is unable to provide for her, or why she cannot hold down a job that brings in a steady paycheck.
Keep in mind, spousal support is separate from child support. Even if your wife remarries you may have to continue providing child support for the children you two had. The idea behind spousal support is to avoid leaving her bereft and indigent, so Virginia courts reasonably look to her new husband as the safeguard against that.
One Good Reason to Keep In Touch With Your Ex-Wife
After your divorce, do make an effort to keep in touch. Perhaps you could send your ex-wife a postcard every Lee-Jackson Day (the Friday before the third Monday of January).
Make sure you put your return address on the postcard. The postcard scene could be something majestic, like the Doumar’s original 1904 waffle cone machine in Norfolk. The spouse who remarries is required by law to notify the paying spouse by mail, using your last known address:
“The spouse entitled to support shall have an affirmative duty to notify the payor spouse immediately of remarriage at the last known address of the payor spouse.”
Do not give her any legal reason for keeping you ignorant of her remarriage. The instant you learn she is remarried, you can put away the checkbook.
Er … That Other Reason
We would be unlawyerly if we did not remind our gentle readers that your obligation to pay spousal support ends not just in remarriage; if either of you passes away, the support ends, too. If you wonder what circumstances could exist for that not to be true, consider that your wife could be considered a creditor against your estate. Without § 20-109 your ex-wife could have haunted you beyond your own grave. Of course, if she dies, she can’t, as they say, take it with her.
For professional advice and a compassionate ear, contact The Firm for Men for a consultation at (757) 383-9184. We can help you understand spousal support, child support, property settlement agreements and more. Plus, we’re conveniently located in the heart of Virginia Beach, but serving all of Hampton Roads from Chesapeake and Norfolk to Hampton and beyond! Call today to secure your appointment.