02/21/2014 02:32 pm ET Updated Apr 23, 2014

He Said/She Said: How to Demonstrate Cohabitation in an Alimony Dispute

He Said

For purposes of this article, my name is "Steven." I live in a metropolitan area in the northeast part of this country. But, I could be from Anywhere, U.S.A. My story is the same story told over and over again by millions of (mostly) men, who are stuck in alimony obligations with their ex-spouses, who are in cohabiting relationships. It's a maddening merry-go-round, and goes something like this:

You divorced me. You've found someone else, or are already trolling around for your next relationship. You force me to pay you alimony because you claim you have a "need" and I have an "ability to pay." No one cares about my "need" or my "inability to pay you" and still maintain my own lifestyle. But that topic is for another day. Every month, I pay you $3,500.00. If I'm one day late, you call your lawyer, send me threatening emails, and tell our kids that they're going to have to live on the street because "Daddy won't help support the family anymore." Now you've locked-in on someone new. I'm genuinely happy for you both (it helps that at the end of the wedding aisle, my alimony obligation stops forever, amen.) But wait!? What's that you say? You're not in a new relationship? This person isn't really staying at your house most nights? You're not really staying at his place most nights? You don't share food bills, split household chores, fill up each other's gas tanks, take vacations together, go to church together, and live your lives like an old, married couple? What's that you say? He doesn't have his own place, but stays with his sister most nights? He doesn't have a job, and just hangs out at your place? I approach you and suggest that since you are cohabiting with this person, that my alimony obligation should be terminated. I offer you a reasonable step-down of alimony payments, which you reject outright. "We're not cohabitating," you say, "and we're going to deny it." Plausible deniability is your defense, as you smirk and whisper to me, "You'll have to prove it."

She Said

For purposes of this article, my name is "Sharon." I live in a metropolitan area in the northeast past of this country. But, I could be from Anywhere, U.S.A. My story is the same story told over and over again by millions of (mostly) women, who are receiving alimony from their ex-spouses, and who are now living with someone new. It's an awesome scam, and goes something like this:

I've found someone else. Get over it. You don't get to dictate anymore who, when or where I see my boyfriend. And I'm allowed to take vacations with him, have him sleep over, go to church with him, and bring him to my parents' house for Christmas. He can even join us for dinner, when the kids are with me. I reject your offer of a step-down or reduction of alimony because you can't prove that we're in a cohabitating relationship. You can't afford a private investigator to monitor our every move, and it's your burden to prove that I've violated the cohabitation clause of our divorce decree. So, go ahead ... try to prove it.

And so it goes. The burden of proof shifts to the person with the least ability to gather the necessary evidence to prove the case. Thwarted by deceptive liars, who are motivated to conceal their relationship for an essentially free-ride, it becomes imperative to strategically search for evidence that is available cost-effectively and time-efficiently. Time is of the essence because every month that goes by, so too, goes another alimony payment.

Though the standard for determining what is (or is not) cohabitation differs slightly from state-to-state, the general proposition is that a significant social and financial interdependence between the two parties (the "couple,") such that they are outwardly perceived as married, needs to be demonstrated. The premise that such a relationship should result in a termination or reduction in alimony is that the alimony recipient's need for spousal support has been affected by the new relationship.

Evaluating Whether the Evidence will Support the Termination of Alimony:

The process for evaluating whether you have (or can obtain) sufficient evidence to prove a claim for the termination for alimony is complex, and may require consultation with a family law attorney in your specific jurisdiction. The following are just a few of the elements that may be considered in the process:

Financial Interdependencies

o Does the couple share a residence? Even if only one party actually pays rent, the fact that the other party spends the majority of his/her time in that residence may be enough to show consumption of food, shelter, etc.
o Does the couple share utility bills?
o Are groceries bills shared?
o Who cooks, cleans, performs household maintenance, mows the lawn?

Social Interdependencies

o Is the couple in an exclusive relationship? Do they put themselves out to the community as a couple?
o If children are involved, does the couple include their respective children in events and activities? Do they "watch over" one another's children?

Tips for Gathering Evidence to Prove Cohabitation

• Engage a private investigator to capture some key, repeatable moments in time, for example, the presence of someone in a residence at 11:00 p.m. and again the following morning at 6:00 a.m., suggesting an overnight stay;
• Monitor social media sites for photographs, messages, vacations, etc.;
• Engage an expert to subpoena cell tower location data to determine whereabouts 24 hours/day, 7 days/week;
• Watch for change in financial habits. The sudden availability of extra cash to purchase items may be suggestive that someone else is contributing financially to reduce the typical cash-flow burden.

Remember, when people are motivated by money, they often lie and deceive. You need to be one step-ahead of the game, and level the playing-field with the best, most objective and suggestive evidence you can gather before walking onto the battlefield.