“She is living with another guy! Why should I still pay spousal support?” “He can’t control me anymore! I can live with anyone I want!”
We hear comments like this all the time. Most divorce decrees have a provision that lists “cohabitation” as a reason for spousal support, also known as alimony, to stop. Which begs the question: What is cohabitation? Courts typically look to three factors to determine whether a former spouse is cohabiting: (1) actually living together; (2) for a sustained duration; and (3) with shared expenses with respect to financing and day-to-day incidental expenses. All three must exist for the Court to terminate spousal support.
The “living together” factor means that the former spouse is living with an unrelated adult in an intimate sexual relationship, also referred to as consortium. This is not a cousin or a roommate who is simply renting a room or splitting the mortgage. It is meant to cover the new girlfriend or boyfriend who has moved in. Courts have employed descriptive language in an attempt to illustrate that the living together factor means more than having a roommate. One court noted that “’cohabitation’ describes an issue of lifestyle, not a housing arrangement.” Another noted, “Within the context of a divorce decree ‘cohabitation’ contemplates a relationship that approximates, or is the functional equivalent of, a marriage.”
If the divorce decree does not specifically state a duration, the Court must decide how much time the ex-spouse has been living with the new boyfriend or girlfriend to satisfy the “sustained duration” factor. Generally, the sustained duration factor means that the unrelated adult was not just there for the weekend or several weekends. Instead, it commonly means that it is for a period of time that indicates a long-term arrangement. But exactly how long is not clear-cut.
The “sharing expenses” factor often creates the greatest difficulty for the Court. If the new boyfriend is in an intimate relationship with the ex-spouse and they have been living together for six months, that likely satisfies the first two factors. And those first two factors may be easily proven or even admitted by the ex-spouse. But proving sharing of expenses is not always so simple. This often requires an aggressive and effective use of discovery tools to find out what is being paid, by whom and how often.
If you are paying spousal support and believe your ex-spouse is cohabitating or if you are receiving spousal support and must defend an attempt to terminate payments because cohabitation is alleged, you should contact one of our family attorneys to discuss what efforts should be exerted on your behalf. As you can see from the discussion above, it is not always as straightforward as you might think.
By: S. Scott Haynes