Husband and Wife divorce after forty-two years of marriage in 2005. The divorce decree divides the property and requires the Husband to pay $25,000 per year for ten years. However, the decree provided that alimony would stop if the Wife cohabitated with “an unrelated adult male.”
In 2010, the Wife moved from her home, and rented it to reduce her expenses. She moved into the upper level of a single family home that was owned by a man she met through an online dating service. The man lived on the lower floor, and they had shared space on the middle floor of the home. The Wife did not pay rent, but she did pay $300 per month for food and often cooked for him.
The Husband stopped paying alimony when he learned of the move, and Wife sought enforcement of the alimony obligation. The trial court ruled that the Wife was not cohabitating under the terms of the decree and enforced the alimony obligation.
The Husband appealed the trial court’s order, initially arguing that the trial court erred in concluding that the Wife was not cohabitating. However, at oral argument the Husband abandoned that argument, and instead argued that the trial court did not a have a workable definition of cohabitation and urged the court to adopt a standard.
The Supreme Court defines cohabitation as “a relationship between persons resembling that of a marriage.” Whether two people are cohabitating will depend on the facts and circumstances of each particular case. The Supreme Court offered guidance on factors to be considered:
- Whether the couple is living together continually
- What the financial arrangements between the couple are and to the extent that they are entangled, including whether there are shared expenses, to what extent one supports the other, whether there are shared investments or retirement planning, if the couple have joint bank accounts, and whether there are life insurance policies naming the other.
- The extent of the personal relationship, including the intimacy of the connection, shared vacations, shared friends and social connections, and a sexual relationship (although not necessarily dispositive)
- Whether the couple share and enjoy each other’s personal property, such as household furnishings, appliances, vehicles, and personal items, such as toiletries or clothing
- The age of the couple may be an important consideration, which may give more or less weight to the support of one by the other and estate planning providing for children of prior relationships
- Whether friends, family or the community view the couple was engaging in a personal intimate relationship
The guidance provided in this case should assist a trial court in determining whether a coupld is cohabitating, even though the facts and circumstances in each particular case. Perhaps the old adage “if it walks like a duck, and quacks like a duck” is most appropriate.