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Archive for Sunday, May 12, 2002

Learn definition of cohabitation to avoid termination of alimony

May 12, 2002

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I am nearly 55 years of age, divorced, and receiving Social Security Disability after a stroke. My former wife works for state government and was required to pay me permanent alimony by the judge in our case until my death or remarriage. My former wife was also obligated to keep up a $100,000 insurance policy that will be paid to me if I survive her.

I have no money in the bank because it all went to pay my lawyer. I am not complaining because he did me a good job, but the fact is I have no money. I do not have enough to pay my monthly expenses for my car and apartment, and need to move into smaller living quarters to make ends meet.

I have a lady friend who owns a house with a separate, furnished apartment upstairs. I would have a renter's lease and be totally separate. If I do this, could my former spouse drag me back to court and have my alimony stopped by claiming that we are "cohabiting"? I don't want to put my already meager income at risk. Thanks in advance.

"Cohabitation" is defined differently from state to state, either in the domestic relations code of laws or by judicial decision. Generally speaking, "cohabitation" in the legal sense is more than merely living together in the same household and engaging in sexual relations. In other words, there must be some economic, personal, property and/or family relationship involved.

For example, in one state, "cohabitation" sufficient to terminate alimony means living with a member of the opposite sex, engaging in regular sexual relations, maintaining a joint bank account, sharing the use of automobiles, intending to be married, and acting as a family for much of the period of their relationship.

Depending on where you live, each case will be determined based upon its own facts, much like your divorce case. In sifting through the evidence to find incidents of cohabitation, the court is likely to consider (1) financial factors (What are your financial arrangements? Do you and the other person share expenses? Does either of you support the other, wholly or partially? Do you use each other's charge cards or have joint bank accounts?); (2) personal factors (Do you engage in sexual relations and, if so, how often? Do you share household duties? Do you have a group of mutual friends? How do you explain your relationship to friends, family, and neighbors, and how do they view your relationship?); and (3) property factors (Do you use each other's automobiles? Do you have access to each other's homes? Do either of you keep clothing or personal items in a common residence?)

In some states, unless "cohabitation" is included in the court order or written agreement as a future contingency that will terminate alimony, it is likely that the court has no authority to alter an award of alimony, which was established by the terms of a final decree of divorce.

But even if cohabitation does not terminate your award, your former wife can raise the issue that, based on your living situation, your expenses have been reduced or eliminated, thus justifying a reduction or termination of alimony. Because of the complexities, we suggest you check it out with a lawyer in your state.

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