Cohabitation and spousal support have changed a little over the past few years. In the past, if a male were getting spousal support or someone wanted a terminating factor, it would be a termination of cohabitation with an unrelated female. That language has changed to cohabitation with an unrelated adult, because of the understanding that you can have cohabitation with someone of the same sex.
Cohabitation is actually difficult to prove as the terminating factor for spousal support because it’s not just proving that the parties are staying together theoretically or that they’re living together.
The word “cohabitation” has a special meaning as a relationship in the domestic world, which says that you are cohabitating as a couple, you are romantically involved with each other, you are contributing to each other’s finances and you are living together. It can be difficult for someone to prove cohabitation as a terminating factor for spousal support.
Terminating a spousal support obligation because the ex-spouse is living with someone else
Let’s assume that you pay to me $13,000 each month of spousal support that will terminate upon your death or my cohabitation with an unrelated adult person. I rented a studio apartment in town and pay maybe $600 a month for it. I sold my big house, but people are telling you that I have a boyfriend. They don’t think I’m really living in the studio, and they have heard that I am living with my boyfriend in another town. I don’t want to lose $13,000 a month but I love my boyfriend, and I want to live with my boyfriend. So I go and I get a little apartment, making sure that my tax returns, driver’s license and mail are directed to that apartment. I stay there maybe once or twice a week. My boyfriend may come and stay there too.
The issue is, how are you going to prove we are cohabitating if my primary address is somewhere else? It’s very difficult to prove. If you are going to trial for a termination of spousal support because I’m cohabitating with an unrelated adult, you’ll have to prove that the boyfriend and I are somehow contributing to the expenditures.
Proving something like this may cost a lot of money. We’re going to hire private investigators and make sure that the wife has no idea that we are working on proving this. Once we have the private investigator’s report with as much supporting information as possible, then we proceed with the court process.
However, it can back-fire, too. For example, if you’re paying $13,000 each month in spousal support but now you’re making more money, you have the right to file to terminate spousal support, but you’re opening the door for your ex-spouse to prove that they should be receiving more instead.
Q: Can lawyers get evidence about cohabitation from minor children?
No, you usually can’t rely on minor children for evidence because they love both parents. Teenagers may be more reliable, but you usually don’t want your children to have to provide that evidence in court. Often, we can let the other side know what the child is willing to say it in court, and they will make the decision not to put the child through that.
Q: Can I get an increase in spousal support?
If you have language in your marital settlement agreement that allows for modification in spousal support post-divorce and your spouse is making more money, you can always file a motion to increase your spousal support.
Ideally, in a divorce settlementt, you want to require that you are provided with a copy of your ex-spouse’s tax return every year. That way you know exactly what they are making, and if they are making more, you can request modification to your support through a motion of the court