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Diane L. Danois, J.D. Headshot

How to Evaluate if Cohabitation Has Placed Alimony at Risk

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A few things can jeopardize an alimony obligation... death, remarriage or that elusive term used for describing an exclusive marriage-like relationship, "cohabitation." Cohabitation means that a couple is living together in a marriage-esque manner, with interwoven financial, social and sexual interdependencies. From a family law perspective, its presence often forces the reevaluation of whether the alimony-receiving spouse is in a "supportive" relationship such that the need for financial assistance from the payer-spouse is reduced or diminished. When the challenge of cohabitation arises, former spouses are often at serious odds with each other, arguing over whether the new relationship rises to the level of "cohabitation." The accuser compiles various pieces of evidence, while the alimony-receiving former spouse vehemently denies, denies, and denies. In order to protect the money-flow, drastic measures are often employed by the alimony-recipient, who continues to create the illusion through deceptive practices such as hiding cars or begging friends and family to lie. Cohabitation is ill-defined, and, but for the rare scenario, where divorce lawyers have, in advance, contemplated this issue arising in the future and spelled-out the specific definitions in a Marital Settlement Agreement, most are left struggling with piecing together demonstrative evidence and hoping it will suffice.

The person with the alimony obligation (the payor) should always anticipate that allegations that the ex's new relationship is tantamount to cohabitation, in violation of the terms of the divorce, will be met with absolute denial. Deny, deny, deny, because while doing so, the alimony obligation continues. Worse, the open-ended financial investment required to prove the requisite elements of cohabitation can be intimidating and include lawyers' fees, private investigators fees, and other related expenses. As cohabitation is typically shown by evidence of financial, social and sexual interdependences, you may need to gather past bank statements, credit card bills, surveillance videos and photographs documenting certain activities, and testimony from various witnesses. The likelihood of a successful outcome (e.g., reduction or termination of alimony) is highly contingent upon what is revealed.

Before embarking on this journey, answer the following questions:

1. Does the couple spend more than three or more consecutive overnights together in a given week?

2. Does the couple share household chores such as laundry, dishes, cooking, or mowing the lawn?

3. Is there an extra toothbrush permanently left in the bathroom, or a closet filled with clothes that don't belong?

4. Does the couple instruct the children, "No, Glen doesn't live here, and don't tell anyone that!"

5. Are cars hidden in the garage, down the street or in someone else's driveway?

6. Does the couple have a shared bank account? Family plan for cell phone bills? Both names on a lease or car?

Any of the above activities are sufficient to begin challenging that your ex's relationship rises to the level of cohabitation. Answering "yes" to more than one of the above increases your chances of succeeding in a claim to modify or terminate alimony.

Cost-Benefit Analysis:

Once you've gotten over the hurdle of evaluating whether your ex is in a cohabiting relationship, and before you place the call to your lawyer to file your Motion to Terminate Alimony, you should first assess whether your overall alimony exposure warrants the expense of litigating this claim. While approaching this "on principle" that you shouldn't have to pay a single dime in alimony in the face of a cohabiting relationship, the reality is that there is a real financial burden associated with proving your case. By way of example, if your alimony obligation is $200/month for the next two years ($4,800), it may not be worth your while to fight the good fight. However, if you are facing $2,000/month for the next five years or more ($100,000+), then the benefits of challenging the obligation far exceed the costs involved. A family lawyer well-versed in the elements required to prove a cohabitation claim can help you assess the merits of your claim.