A de facto marriage is only relevant and applied under West Virginia law in really one situation. That’s when somebody is attempting to modify an award of spousal support. So a defacto marriage is a marriage. Let’s say you have a couple that is living together. They share bills, a bank account, and so forth. Several factors are considered to determine whether something is a de facto marriage. Under the law, it comes up in a situation where one of the spouses has been awarded alimony. Now it depends on the type of alimony as to whether the definition of de facto marriage could be applied. So what people will oftentimes do is somebody will file for a reduction in the alimony that they have to pay. One of the reasons that they might do that is the existence of a defective marriage. Let’s say their spouse is cohabitating with another person with whom they are in a relationship they’re sharing bills, they’re sharing a bank account, and so forth. What they will do is they will claim as a basis for modifying the spousal support is the existence of a defective marriage.
Now, whether that will be awarded in terms of a reduction of the alimony is going to be based on what number one, whether you can prove the existence of a defective marriage. If you can prove that then the next thing that you have to take a look at is the type of alimony that has been awarded. If there’s been an award of rehabilitative alimony, or in an award of lump sum alimony, if you’re not going to be able to modify it. However, you are going to be able to modify it if you prove it under certain circumstances, and you were able to establish some other form of alimony, such as permanent alimony. Now the word permanent is a little bit of a misnomer in the law in West Virginia when it comes to that. Regardless if it’s an award of alimony that is not rehabilitative or lump sum, then it might be able to be modified in some way upon proving the existence of a de facto marriage. It’s a specific term that’s used in a specific situation under West Virginia law, but you must have a good understanding of what that word means before attempting to file for a modification of any kind.
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