Cohabitation and Alimony
UPDATED: June 19, 2018
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Alimony, or spousal support, is sometimes conditioned upon the supported spouse remaining unmarried and single. In some states, cohabitation can influence a court to terminate alimony. Some states have laws that say cohabitation suggests alimony should be reduced or at least considered. In some alimony orders, cohabitation is one of the conditions on which alimony ends. If a person suspects a former spouse of cohabiting with someone else, he may seek to reduce or stop alimony payments. However, states have different laws about the modification of alimony payments and the process can be complicated.
Cohabitation and Alimony in State Laws
The first thing to determine is if the state allows alimony to be modified. Not every state allows spousal support modification and cohabitation will have no effect on alimony in these states. Even if the state allows alimony to be modified, it is also possible that a person gave up this right during the divorce judgement. If this is the case, the person will have to make a motion to modify spousal support by requesting a hearing in divorce or family court.
In other states, there are laws that say cohabitation should decrease alimony. For example, in California the law says that a cohabitating spouse is presumed to have a decreased need for spousal support. Check the law in your state to find out whether there are laws related to cohabitation and alimony that might allow you to request a termination or a modification of your spousal support payments.
Continue Making Spousal Support Payments
It is important to continue making timely alimony payments while waiting for a hearing date. Should a person fail to make the alimony payments, he can be found guilty of indirect contempt of civil court which requires another case before a different judge. However, if a person chooses to stop or reduce alimony payments before the hearing, he can demonstrate good faith by putting the payments in an interest-bearing savings account. He should still be prepared to pay the principal and interest to the former spouse, in addition to any attorney's fees, if he loses at the hearing.
This is not recommended. It is always best to continue making payments until a court orders that spousal support be terminated. Even if spousal support is terminated or changed, it is difficult to know whether or how a court will deal with this problem prior to a hearing. Rather than stopping payments, consider requesting that the modification or termination be retroactive to the date the request for termination or modification was filed.
Court Views on Cohabitation
States have different definitions of what constitutes cohabitation and judges can also define cohabitation differently depending on the jurisdiction. A judge could find that a former spouse is indeed cohabiting if she has a serious romantic or intimate connection with her new partner. This can be proved if she and her new partner have their mail delivered to the same residential address, are on the same lease for the same rented residence, or regularly park their vehicles at the same residence.
A judge may also find there is an instance of cohabitation if the former spouse and the new partner spend their free time and eat their meals at the same residential address, have or parent children together, and share bank accounts or other assets. Other factors in determining cohabitation include whether the former spouse and her partner make contributions to common household expenses or if their relationship is recognized in the community.
In some states, the law provides a definition of what it means to be cohabitating in a romantic partnership. A divorce attorney or family law attorney will know the laws in your state.
The facts regarding cohabitation are admitted into evidence during the alimony hearing. It may be enough to provide a declaration of the facts and evidence in documentary evidence you submit prior to the hearing, but declarations can sometimes be excluded from evidence so it is always best to come to the hearing prepared to tell the judge the facts and present any other evidence you may have about the cohabitation. In some states, evidence of cohabitation is enough to reduce or altogether stop alimony payments. However, other states require more evidence beyond cohabitation to justify reducing spousal support.
In these states, the court is likely to apply what is commonly known as an economic contribution test. The court will ask the former spouse if she has a permanent residence with her new partner or is involved in a relationship that is like a marriage. If the former spouse is receiving economic support from the new partner, or is using alimony payments to support the new partner, it is likely that the alimony payment will be reduced or eliminated.
Appeals of Alimony Termination or Reduction
It is within the judge’s discretion to decide on the amount of payments to be reduced. Should this decision not be favorable, the person has the option to appeal. It is possible to move for a modification of spousal support more than once. Complications can arise if the former spouse breaks up with the new partner before the hearing comes to court, or if the former spouse appears to be avoiding a permanent relationship so they can continue receiving alimony. In the latter example, in particular, an attorney should be consulted for advice on available legal options.
Attempting to get a modification of spousal support is often difficult but can be worth the effort. Work with an alimony attorney closely to understand how changes in state laws and recent appeals rulings may affect your case.