The cohabitation conundrum: Terminating alimony when a former spouse is supported by another person
Posted on 06/23/2016 at 12:00 AM by Mary Zambreno
Although a court may award alimony at trial, circumstances that occur after the trial play a very critical role in the continuation of that support.
In the case, In re Marriage of Connolly, the parties divorced after 26 years of marriage and the wife was awarded alimony in the amount of $1900 per month. Later, the ex-husband applied to terminate that alimony and the district court agreed, finding that the ex-wife had been cohabiting with her fiancé. The district court concluded that she failed to prove a need for continuing support and the appellate court affirmed, noting that the ex-wife had moved in with her fiancé, paid no rent or utilities, and had the ability to pay down some of her own debts.
The Connolly case demonstrates one such instance when alimony can be discontinued – that is, when a recipient spouse is found to be cohabiting with another individual. In Iowa, cohabitation occurs when unrelated people live together like married persons – for example, by pooling income and resources and sharing family and joint expenses. Once the paying spouse proves cohabitation, the burden shifts to the recipient spouse to demonstrate why alimony should continue.
Cohabitation can affect the recipient spouse’s need for alimony and therefore may warrant a modification of an alimony award. While the statute does not specifically refer to it by name, Section 598.21C provides that the court may modify a spousal support order when there has been a substantial change in circumstances. To determine whether there has been a substantial change in circumstances, some of the factors that the court shall consider are changes in the employment, earning capacity, income, or resources of a party; receipt by a party of an inheritance, pension, or other gift; changes in the medical expenses of a party; changes in the physical, mental, or emotional health of a party; remarriage of a party; and possible support of a party by another person (emphasis added).
While it is common practice to include in most decrees of dissolution of marriage that alimony shall automatically terminate upon the death or remarriage of the recipient spouse because those events can be predicted and easily determined, a spouse’s cohabitation generally does not automatically terminate alimony. Rather, the aforementioned statute enables the payor spouse to seek a modification of alimony based upon the notion that the recipient spouse is being supported by another person and therefore does not have an ongoing need for support from the payor spouse.
The Iowa Court of Appeals previously had the opportunity to identify cohabitation – like death or remarriage – as another automatic trigger to terminate alimony but declined to do so. In the 1998 case of In re Marriage of Wendell, the payor spouse requested that alimony automatically terminate in the event the recipient spouse became self-sufficient following employment or through cohabitation. The Court wrote that “unlike remarriage, cohabitation is not an easily identifiable triggering event. It may be compatible with remarriage when cohabitants live together and assume various responsibilities towards each other. Yet, cohabitation has too many variables to be a defined future event, like remarriage, in a dissolution decree. Thus, we believe it would be inappropriate to use cohabitation as an event to automatically terminate alimony in an original dissolution decree.The question is better reserved for resolution in an action to modify the decree for dissolution of marriage.”
Although very similar fact patterns emerge when a payor spouse attempts to prove cohabitation – for example, do they use the same mailing address, park their vehicles at the same residence address, spend time at the same residence together, etc. – states vary in their definitions of cohabitation. Illinois, for example, deems an ex-spouse to be cohabiting when he or she resides with another individual on a “continuing conjugal basis.” Other states, such as New York, require the recipient spouse to hold herself out as the spouse of the person with whom he or she is living. In the Connolly case, the ex-wife essentially admitted to cohabiting with her fiancé, but in most other cases, the cohabitation must be proven by the payor spouse.
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