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Spending time with a new partner can jeopardize alimony

Divorce agreements often say that alimony payments will stop if the spouse receiving them begins “cohabiting” with someone else.

The logic of this is that sometimes a spouse will get divorced, start receiving alimony, and then move in with a lover who will support him or her. This isn’t fair, since the ex-spouse is then paying to support someone who is already being supported by someone else.

But the problem is that “cohabitation” isn’t always clear-cut. Sometimes it’s obvious that an ex-spouse has moved into someone else’s home and is being taken care of by them financially. But not always.

Take a recent case from Delaware where a retired couple’s divorce agreement called for the husband, Joseph, to pay alimony to his ex-wife, Shannon. The agreement said that Joseph could stop paying alimony if Shannon started “cohabiting” as defined by state law. Under Delaware law, two people are cohabiting if they “regularly reside” together and hold themselves out as a couple.

At some point, Shannon became romantically involved with another retiree named Fletcher. Joseph hired a private investigator to tail Shannon and Fletcher to determine if they were living together.

The investigator discovered that they did spend an awful lot of time together – in fact, he saw Fletcher’s car at Shannon’s house on 25 out of 37 days. He also spotted Fletcher doing domestic chores for Shannon, including feeding her cat, taking out the trash, and doing yardwork. Also, he saw Fletcher using her garage code.

But while Fletcher spent two to four nights a week at Shannon’s house, the couple had separate homes, and Fletcher didn’t keep any clothes or other personal property at Shannon’s. The couple also pursued different activities during the day.

Joseph went to court to have his alimony stopped on the grounds that Shannon was cohabiting with Fletcher. A judge denied the request, noting that Shannon and Fletcher had separate, independent houses.

But on appeal, the Delaware Supreme Court sided with Joseph. It said it didn’t matter that Shannon and Fletcher owned separate homes and didn’t do everything together during the day. The couple were nevertheless cohabiting because they lived together “with some degree of continuity,” the court decided.

The meaning of “cohabitation” varies a lot from place to place and can apply differently from situation to situation. But if you have any questions about your own situation or that of a former spouse, we’d be happy to help you.

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