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The Relevance of Premarital and Postmarital Cohabitation in Awarding Spousal Support
© 1995 National Legal Research Group, Inc.
At the outset, it is important to note that there are two different types of cohabitation which may be relevant. First, the parties themselves may live together for a period of time before they get married. Such premarital cohabitation may be one factor for the court to consider in making an initial support award. Second, after the initial award is made, the recipient spouse may cohabit with a third party. By virtue of statute, case law, or the specific provisions of a separation agreement, such cohabitation may constitute grounds for terminating the prior support award.
I. PREMARITAL COHABITATION
While many state legislatures have enacted statutes regarding postmarital cohabitation, no state legislature has enacted a provision which specifically requires a court to consider premarital cohabitation with one's future spouse when awarding alimony. Nevertheless, premarital cohabitation could conceivably be considered a relevant factor in awarding alimony under the "catch-all" provisions which can be found in many alimony statutes. See, e.g., Fla. Stat. Ann. 61.08(2) (West Supp. 1995)("any other factor necessary to do equity and justice between the parties"); 750 Ill. Comp. Stat. Ann. 5/504(a) (12) (Supp. 1994) ("any other factor that the court expressly finds to be just and equitable"); Mo. Ann. Stat. 452.335(2)(10) ("[a]ny other relevant factors"); N.J. Stat. Ann. 2A:34-23(b)(10) (West Supp. 1994) ("[a]ny other factors which the court may deem relevant"); S.C. Code Ann. 20-3-130(c)(13) (Supp. 1993) ("such other factors the court deems relevant"); W. Va. Code Ann. 48-2-16(b)(16) (1992 & Supp. 1994) ("[s]uch other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable grant of alimony").
A few courts have addressed the propriety of taking premarital cohabitation into account when awarding alimony or maintenance. In Skeleton v. Skeleton, 490 A.2d 1204 (Me. 1985), the Maine Supreme Court concluded that it was proper to take into account a premarital cohabitation period in determining alimony. There, however, the parties had been married for nine years, then divorced and lived together for six years, and then remarried and divorced again after three years. The court held that it was appropriate to consider the ramifications of the wife's occupation during the 18 years of marriage.
Although not specifically addressing the propriety of its action, the Oregon Court of Appeals has taken into account the fact that a relationship dated back 12 years before the marriage in making an award of permanent alimony to the wife. In re Marriage of Mota, 66 Or. App. 439, 674 P.2d 90 (1984). The Mota court did not indicate whether the couple had cohabited during any of that 12-year period.
In a third case, an appellate court refused to take into consideration a wife's premarital contributions. Greenwald v. Greenwald, 154 Wis. 2d 767, 454 N.W.2d 34 (1990). In Greenwald, the wife took a job as the husband's housekeeper and served in this capacity for 10 years without salary but with free room and board. The employment relationship, however, soon developed into a marriage-like relationship and, after 10 years, the parties actually married. Based on a prior case in which the court had held that the Family Code did not govern property divisions between unmarried cohabitants, the court held that the wife's premarital contributions did not have to be considered in establishing property division or maintenance. The Greenwald court further opined that a different result was not required merely because the parties later married.
A fourth case worth noting is In re Marriage of Hebbring, 207 Cal. App. 3d 1260, 255 Cal. Rptr. 488 (1989). In that case, the court awarded only temporary alimony, given that the parties had only been married for two years and two months when they separated. The court observed that the parties had lived together for seven and one-half years prior to their marriage the court but refused to "tack on" the cohabitation period to the marriage period in determining the appropriate amount of alimony.
II. POSTMARITAL COHABITATION
While there is relatively little authority on the relevance of premarital cohabitation to spousal support, there is a great deal of statutory and case law relating to the significance of postmari tal cohabitation with a third party. Many states now have legislation which provides for the modification or termination of alimony under certain circumstances where an alimony recipient is cohabiting with a third party. The common law of many other states also permits such modification or termination of alimony where cohabitation reduces the recipient spouse's need for alimony. In other cases, alimony awards can be modified or terminated upon cohabitation based upon the language of a settlement agreement or divorce decree.
Statutes
As of November 1994, 12 states had enacted statutes which allow courts to reduce, suspend, or terminate alimony in some situations where the alimony recipient is living with a third party. Those states are Alabama, California, Connecticut, Delaware, Georgia, Illinois, Louisiana, New York, Oklahoma, Pennsylvania, Tennessee, and Utah. The relevant language from these statutes is set forth in the box on the following page.
As a review of the box demonstrates, these statutes generally provide that postmarital cohabitation is a sufficient basis for termination of a spousal support award. The exact type of cohabitation which is necessary varies from state to state. For example, the California statute provides that "[h]olding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subsection." Cal. Fam. Code 4323 (a) (2). Under the Delaware law, cohabitation means "regularly residing with an adult of the same or opposite sex, if the parties hold themselves out as a couple, and regardless of whether the relationship confers a financial benefit on the party receiving alimony. Proof of sexual relations is admissible but not required to prove cohabitation." Del. Code Ann. tit. 13, 1512(g). Oklahoma's statute defines cohabitation as "the dwelling together continuously and habitually of a man and a woman who are in a private conjugal relationship not solemnized as a marriage according to law, or not necessarily meeting all the standards of a common-law marriage." Okla. Stat. Ann. tit. 43. 134 (C). The Georgia law includes the following definition of cohabitation: "dwelling together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person." Ga. Code Ann. 19-6-19(b) (Supp. 1994). Prior to 1993, this statute used to define cohabitation as "dwelling together continuously and openly in a meretricious relationship with a person of the opposite sex." Ga. Code Ann. 19-6-19 (b) (1991) (emphasis added). The Alabama, California, Oklahoma, Pennsylvania, and Utah statutes still speak of cohabiting with a member of the opposite sex. The New York law is even narrower, only addressing the situation of a recipient wife's "habitually living with another man and holding herself out as his wife." N.Y. Dom. Rel. Law 248. A similar gender-based provision in the Official Code of Georgia was held to violate the equal protection clause of the fourteenth amendment to the United States Constitution. Sims v. Sims, 243 Ga. 275, 253 S.E.2d 762 (1979).
In addition, some of the statutes permit the parties to a divorce decree to agree that cohabitation will not have the effect stated in the statute. Such provisions can be found in the California, Delaware, and Illinois statutes.
There has been substantial litigation under the more broadly phrased statutes, typically concerning whether there has been sufficient proof of the triggering event, i.e., "cohabitation." The Alabama judiciary, in determining whether a former spouse is "living openly or cohabiting with a member of the opposite sex," Ala. Code 30-2-55, has required both a sexual element and some degree of permanence in the relationship. See, e.g., Ayers v. Ayers, 643 So. 2d 1375, 1377 (Ala. Civ. App.), cert. denied, 643 So. 2d 1377 (Ala. 1994) (stating that "`[c]ohabitation has been defined as some permanency of relationship coupled with more than occasional sexual activity between the cohabitants'"; trial and appellate courts found only evidence of a "three-year romantic friendship" between the former wife and her alleged cohabitant and denied the former husband's request to terminate alimony (quoting Tucker v. Tucker, 416 So. 2d 1053, 1055 (Ala. Civ. App. 1982)); Perkins v. Perkins, 643 So. 2d 992, 993 (Ala. Civ. App. 1994) (evidence supported finding of cohabitation where "wife's daughters testified that their mother was living with a man, that his clothes and toiletries were located at her house, that they were `always together,' that they spent practically every night together, and that he ate his meals at her house and drove her car" and where wife admitted to sexual relationship with the man and to discussions of marriage). Louisiana's Court of Appeal has also required both a sexual element and a permanency element. See Polk v. Polk, 626 So. 2d 1233 (La. Ct. App. 1993), cert. denied, 634 So. 2d 381 (La. 1994) (mere fact that wife had a child by her paramour held insufficient to terminate support where there was no common residence). Factors which indicate a permanent relationship include occupying the same dwelling, ceasing to date other members of the opposite sex, and sharing household expenses. Perkins v. Perkins, supra. The Alabama courts have not defined exactly how strong the sexual element of the relationship must be, but mere occasional sexual intercourse is not sufficient. See Roe v. Roe, 611 So. 2d 380 (Ala. Civ. App. 1992). However, some sexual activity in the relationship must be established. See id. (wife lived with 75-year-old man and provided transportation and housekeeping services for him; not sufficient to constitute cohabitation).
The Illinois judiciary has interpreted that state's statutory provision for termination of future maintenance obligations when "the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis," 750 Ill. Comp. Stat. Ann. 5- 510 (c), as requiring that a de facto husband and wife relationship exist between the cohabitants. See In re Marriage of Frasco, 263 Ill. App. 3d 171, 638 N.E.2d 655 (1994). Such a relationship may exist even absent proof of sexual conduct between the cohabitants. Id. (resident, continuing conjugal cohabitation held to exist even though it was not established that couple had a sexual liaison; evidence supporting this conclusion included: couple's domestic relationship was like that of marriage partners, couple took meals, trips, and vacations together, couple had joint checking account, and couple had an exclusive dating relationship and were openly affectionate toward one another). The cohabitation relationship referred to in 750 Ill. Comp. Stat. Ann. 5/510 (c) may also exist even if the relationship does not affect the former spouse's need for alimony. In re Marriage of Frasco, supra (need is one factor to consider, but it is not controlling; moreover, proof of need is not sufficient to defeat a petition to terminate maintenance when all other factors show the existence of a resident, continuing conjugal relationship). Factors which the Illinois courts consider in determining whether the requisite cohabitation relationship exists include: (1) the length of the relationship; (2) the amount of time the couple spends together; (3) the nature of the activities the couple engages in; (4) the interrelation of the couple's personal affairs; (5) whether the couple vacations together; and (6) whether the couple spends holidays together. In re Marriage of Herrin, 262 Ill. App. 3d 573, 634 N.E.2d 1168, 1171, leave to appeal denied, 157 Ill. 2d 501, 642 N.E.2d 1279 (1994).
Cohabitation With Former Spouse. One construction issue which has arisen under several of the cohabitation statutes is whether cohabitation with one's former spouse is grounds for modification or termination of alimony. Appellate courts in Alabama and Illinois have determined that such cohabitation is not a ground for reducing or ending alimony. Vaughn v. Vaughn, 507 So. 2d 960 (Ala. Civ. App. 1987); In re Marriage of Antonich, 148 Ill. App. 3d 575, 499 N.E.2d 654 (1986), appeal dismissed, 113 Ill. 2d 574, 505 N.E.2d 350 (1987).
Case Law
Even in the absence of a statute like those listed above or a similar provision in a settlement agreement or a divorce decree, some courts have treated cohabitation as a ground for modifying or terminating alimony in certain situations. The holdings in these cases have been summarized as follows:
- Where no specific statutory provisions were applicable and where no changes in financial circumstances were shown, the former wife's conduct in living with a lover was held sufficient to warrant, or to be relevant to, modification of a decree for alimony, although it has also frequently been held to be insufficient.
Where changed circumstances were also present, courts have held that the former wife's conduct in living with a lover warranted, or was relevant to, modification of the decree, not only where the changed financial circumstances involved their relationship, as where the former wife was receiving support from her lover or was supporting him, but also where the change in financial circumstances did not involve their relationship.
A few courts have taken the position that, even absent a statute, a separation agreement, or a divorce decree which so provides, an alimony recipient's "sexual misconduct," such as cohabitation, is sufficient, without further proof, to warrant the modification or termination of alimony. See, e.g., McRae v. McRae, 381 So. 2d 1052 (Miss. 1980) (former wife forfeited alimony by openly living with a man for more than a year); Taake v. Taake, 75 Wis. 2d 115, 233 N.W.2d 449, 453 (1975) (former wife's cohabitation with another man "can be acknowledged as a change of circumstances affecting her former husband's responsibility to provide alimony for her support"; held to be proper for trial court to amend divorce judgment to delete alimony provision). These decisions have come under attack. See Hammonds v. Hammonds, 641 So. 2d 1211 (Miss. 1994) (court rejected McRae court's focus on moral aspects of cohabitation and held that proper focus is on financial need of alimony recipient; the Hammonds court did not state that it was overruling McRae although that is the effect of its ruling); Van Gorder v. Van Gorder, 110 Wis. 2d 188, 327 N.W.2d 674, 681 (1983) (appellate court held that trial court had erred in relieving the former husband of his maintenance payment obligation based solely on the fact that the former wife was cohabiting; the majority opinion does not expressly overrule Taake but the dissenting opinion notes that "the majority retreats" from Taake).
Other courts have concluded that postdivorce cohabitation is not sufficient per se to justify modification of an alimony provision but it can be a factor to consider upon a motion to modify. See, e.g., Abbott v. Abbott, 282 N.W.2d 561 (Minn. 1979); see alsoCoggins v. Coggins, 289 Ky. 570, 159 S.W.2d 4, 7 (1942) (court determined that former husband's contention that former wife "was living in a state of immorality is a proper matter to be considered on motion for modification of the judgment sued upon"). But seeSharp v. Sharp, 516 S.W.2d 875, 878 (Ky. 1975) (to support his motion to reduce maintenance, former husband offered testimony to show that the former wife's conduct, i.e., her relationship with another man, was immoral; the court rejected the former husband's claim that Coggins supported his position, noting that "[s]ince Coggins was decided, society has undergone substantial changes but, more importantly, KRS 403.250(1) has become the statute which controls the modification or termination of provisions for maintenance").
With respect to an alimony recipient's right to continue receiving alimony even after he or she begins to cohabit with a paramour, the majority rule now appears to be that the right to receive alimony only ends or becomes subject to modification if the need for the alimony is affected by the cohabitation. See, e.g., Alibrando v. Alibrando, 375 A.2d 9 (D.C. 1976); Meyer v. Meyer, 41 Md. App. 13, 394 A.2d 1220 (1978), cert. denied, 284 Md. 746 (1979); Gayet v. Gayet, 92 N.J. 149, 456 A.2d 102 (1983); Ho and Ho, 93 Or. App. 421, 762 P.2d 344 (1988); Ramsbottom v. Ramsbottom, 542 A.2d 1098 (R.I. 1988); Horr v. Horr, 445 N.W.2d 26 (S.D. 1989); cf. Combs v. Combs, 787 S.W.2d 260, 262 (Ky. 1990) (court concluded that "a maintenance recipient's cohabitation can render continued maintenance `unconscionable' if the nature of the cohabitation constitutes a new `financial resource' as contemplated in KRS 403.200(2)(a)"; the court also recognized that not every instance of cohabitation constitutes a change in circumstances making continued maintenance "unconscionable" and noted that a court must ascertain whether the living situation changes the maintenance recipient's economic position); Palmer v. Palmer, 289 S.C. 216, 345 S.E.2d 746 (1986) (court found that, as a result of her cohabitation with another man, former wife's economic circumstances had improved, warranting a termination of alimony). Thus, if an alimony recipient cohabits with another person on whom the recipient is to some extent financially dependent, many courts have found a sufficient change in circumstances which warrants a reduction in support. See Haag v. Haag, 609 A.2d 1164 (Me. 1992); Ianitelli v. Ianitelli, 199 Mich. App. 641, 502 N.W.2d 691, leave to appeal denied, 511 N.W.2d 686 (Mich. 1993); Weston v. Weston, 882 S.W.2d 337 (Mo. Ct. App. 1994); Gayet v. Gayet, supra; Wolfe v. Wolfe, 46 Ohio St. 2d 399, 350 N.E.2d 413 (1976); McVay v. McVay, 189 W. Va. 197, 429 S.E.2d 239 (1993).
The rule in Florida has been stated as follows:
- [I]n the absence of an agreement, when a payor spouse challenges the receiving spouse's right to continue to receive periodic alimony because the receiving spouse is cohabiting without the benefit of marriage, the court must determine whether either the new cohabiting partner is providing some support to the receiving spouse, thereby lessening the receiving spouse's need; or the receiving spouse is diverting some of the support alimony to the new cohabiting partner. If the court finds the answer to either of these questions to be in the affirmative, it must then decide what effect such a fact should have upon the payor spouse's obligation to continue to pay alimony.
The extent to which an alimony award is modified due to cohabitation with financial dependence correlates to the extent of the dependence. Where the cohabitant meets most of the recipient's expenses, termination of support is probably appropriate. SeeThomas v. Thomas, 76 Ohio App. 3d 482, 602 N.E.2d 385 (1991) (court terminated support based on finding that former wife's cohabitant paid all of the rent and utility expenses for the home); Palmer v. Palmer, 289 S.C. 216, 345 S.E.2d 746 (1986) (court terminated support where former wife lived with man who provided her with extensive financial support). In situations where dependence is less than total, complete termination of alimony is probably error. See Perri v. Perri, 79 Ohio App. 3d 845, 608 N.E.2d 790 (1992) (where support did not rise to level of de facto marriage, error to terminate alimony); McVay v. McVay, 189 W. Va. 197, 429 S.E.2d 239 (1993) (reduction might be appropriate where dependence was not total but error to reduce support to $1 per year).
Of course, if the cohabitation exists at the time the divorce decree providing for alimony is entered, the continuation of the cohabitation relationship under the exact same arrangement is not a change in circumstances which will justify modification or termination of alimony. See Dickerson v. Dickerson, 87 Ohio App. 3d 848, 623 N.E.2d 237 (1993).
Separation Agreements and Divorce Decrees
As indicated above, separation agreements and divorce decrees commonly contain provisions explicitly or implicitly relating to the effect of cohabitation upon the right to receive periodic alimony.
A question which courts often address is whether a provision in a separation agreement that spousal support terminates upon "remarriage" also provides for such termination upon cohabitation. There is a split of authority on this issue. In the following cases, the courts held that cohabitation was not the equivalent of "remarriage" for purposes of these provisions: Sheffield v. Sheffield, 310 So. 2d 410 (Fla. DCA 1975), cert. denied, 328 So. 2d 844 (Fla. 1976) (de facto marriage insufficient); Romero v. Romero, 509 So. 2d 681 (La. Ct. App.), cert. denied, 512 So. 2d 427 (La. 1987) (open concubinage insufficient; statutory amendment which provided that entering into open concubinage was an additional basis for termination of alimony held inapplicable because agreement in question was filed with court before the amendment went into effect); Mendelson v. Mendelson, 75 Md. App. 486, 541 A.2d 1331 (1988) (quasi-marital relationship insufficient); Jackson v. Culp, 400 Pa. Super. 519, 583 A.2d 1236 (1990), allocatur denied, 529 Pa. 621, 600 A.2d 537 (1991) (cohabitation insufficient; court noted, however, that if cohabitation later evolved into a common law marriage, the remarriage clause might then be triggered); Croom v. Croom, 305 S.C. 158, 406 S.E.2d 381 (Ct. App. 1991) (cohabitation insufficient). In the following cases, the courts held that cohabitation was the equivalent of "remarriage" for purposes of these provisions: O'Connor Brothers Abalone Co. v. Brando, 40 Cal. App. 3d 90, 114 Cal. Rptr. 773, 774 (1974) (agreement defined "remarriage" as including former wife's "appearing to maintain a marital relationship"; appearance of marriage in fact held unnecessary where former wife and her paramour enjoyed a relationship of substantial duration, engaged in frequent sexual intercourse, ate meals together, lived at same residence, and both used former wife's cars and charge account); Ruquist v. Ruquist, 367 Mass. 662, 327 N.E.2d 742 (1975) (remarriage provision of support agreement was invoked by court when former wife relocated with children to Virgin Islands accompanied by a male friend whom, she acknowledged, she planned to marry); Weseman v. Weseman, 51 Or. App. 675, 626 P.2d 942, review denied, 52 Or. App. 117, 631 P.2d 341 (1981) (remarriage provision of settlement agreement held triggered by former wife's cohabitation with man; the couple participated in a ceremony in which a local minister pronounced a blessing on them and they shared household costs and a car).
Another area of litigation with respect to separation agreements or divorce decrees relates to the meaning of terms and phrases like "cohabit," "live together," "lives in a state of concubinage," and "reside with" where the parties agree that such conduct with a member of the opposite sex will terminate spousal support. (Note: an Ohio appellate court has ruled that "concubinage" as used in a separation agreement implies only heterosexual and not homosexual relationship. See Gajovski v. Gajovski, 81 Ohio App. 3d 11, 610 N.E.2d 431 (1991).) In some cases the requisite "cohabitation" was found. See, e.g., Gertrude L.Q. v. Stephen P.Q., 466 A.2d 1213, 1215 (Del. Super. Ct. 1983) (parties stipulated that alimony would terminate if the wife "cohabits with an unrelated male"; court held that a de facto marriage did not have to be proven to terminate alimony and found cohabitation where the wife slept regularly with a man at his house, had a sexual relationship with the man, kept 20% of her wardrobe at his house, helped with household chores, and ate dinner at the man's house three or four nights per week). In other cases "cohabitation" was not established. See, e.g., Cook v. Cook, 798 S.W.2d 955, 956, 957 (Ky. 1990) (incorporated settlement agreement provided that the husband's alimony obligation would cease if the wife began "cohabitation with a non-relative adult male"; requisite cohabitation not found where wife and "gentleman friend" engaged in an exclusive sexual relationship, maintained separate households, and resided in separate residences); Sitarek v. Sitarek, 179 A.D.2d 1064, 579 N.Y.S.2d 522, 522, modified and aff'd, 179 A.D.2d 1065, 579 N.Y.S.2d 523 (1992) (incorporated settlement agreement provided that "if plaintiff cohabitated with an unrelated male for a period of more than two months, defendant could apply for a modification or termination of his support obligation"; court observed that the defendant had to prove that the plaintiff was "living with an unrelated male and that she was holding herself out as his wife" and held that the defendant had failed to establish the second requirement); see also Frey v. Frey, 14 Va. App. 270, 416 S.E.2d 40, 42 (1992) (settlement agreement provided that alimony would terminate upon wife's "cohabitation, analogous to a marriage, with another man"; court concluded that this did not require that the male cohabitant assume the duty of financially supporting the wife and reversed and remanded for a determination as to whether the wife and alleged cohabitant had "agreed to live together permanently or for an indefinite period and to assume duties and obligations normally attendant with a marital relationship").
In Salas v. Salas, 128 A.D.2d 849, 513 N.Y.S.2d 770, 771, motion for leave to appeal dismissed, 70 N.Y.2d 747, 519 N.Y.S.2d 1033 (1987), the court considered the meaning of a provision in an incorporated separation agreement which made "the plaintiff living together with another male unrelated by blood" a ground for termination of alimony. The court ruled that living together"should encompass a possessory interest in the home." 513 N.Y.S.2d at 772. Because the alleged "live-in" only stayed overnight at the plaintiff's residence on a sporadic basis, the court refused to terminate the alimony obligation.
The phrase "lives in a state of concubinage" was interpreted in Dial v. Dial, 92 Ohio App. 3d 513, 636 N.E.2d 361 (1993). Pursuant to the divorce decree at issue in Dial, the husband's obligation to pay alimony terminated in the event the wife "lives in a state of concubinage." 636 N.E.2d at 362. Quoting from an earlier Ohio decision, the Dial court noted that "living in concubinage" meant
- "the act of a man and woman cohabiting without ceremonial marriage or even the consent necessary for a common law marriage. In it the participants partake of the benefits of marriage such as sexual intercourse but without any of the concomitant responsibilities."
Other courts have considered the meaning of "residing with an unrelated adult male" or some similar provision for termination of alimony. In Beason v. Beason, 204 Mich. App. 178, 514 N.W.2d 231 (1994), and Kenyon v. Kenyon, 496 So. 2d 839 (Fla. DCA 1986), review denied, 506 So. 2d 1042 (Fla. 1987), the courts held on the facts presented that such residence was not established and, thus, the alimony obligation was not terminated. In Beason, the alleged "residing male" was found to only have a transient relationship with the wife and he was at most only a frequent guest at her house. Similarly, in Kenyon, the requisite "permanent residing with a nonrelated adult male" was not established, where the most that could be shown was that the alleged "residing male" had spent 18 nights with the wife at her residence during a two-and-one-half-year period.
In light of the construction problems described above, attorneys who draft separation agreements should heed the following advice:
- In view of the uncertainty produced by statute and case law concerning the effect of cohabitation on the continuance of alimony, it seems obvious that the careful lawyer for the husband should attempt to include in any separation agreement some provision covering the question. In fact there are cases which suggest that a separation agreement which merely provides in the usual terms that alimony will continue until the death of either party or the remarriage of the recipient contains the negative inference that cohabitation will have no effect on alimony regardless of the circumstances in which it occurs. If a separation agreement does contain a provision for modification in the event of cohabitation by the recipient of alimony, it will be honored by the courts, but of course care must be taken to draft the provision precisely enough to cover the kind of conduct which should fairly result in modification.
Two Massachusetts cases highlight the potential significance of whether a provision relating to cohabitation is contained in a separation agreement which is later sued upon or in a divorce decree which a former spouse seeks to enforce. In Gottsegen v. Gottsegen, 397 Mass. 617, 492 N.E.2d 1133 (1986), the court considered the effect of a separation agreement which stated that if the wife "remarried" within five years of the execution of the agreement, the husband's obligation to pay her $812.50 per month for support and maintenance would terminate and be substituted by an obligation to pay the wife $833.33 per month for three years. The provision in question specified that "remarriage" included "cohabitation with the same unrelated man with whom the wife has a romantic relationship for more than two (2) consecutive months." 492 N.E.2d at 1135. This provision merged into the divorce decree and did not survive that decree.
When the former wife began cohabiting with another man, the former husband began paying $833.33 per month in accordance with the decree. The former wife responded by filing a civil contempt suit. Finding that the former wife had been cohabiting with another man within the terms of the decree, the trial court ruled that the remarriage provision became effective and the former husband was not in contempt.
The Supreme Judicial Court of Massachusetts overruled the trial court on the ground that "[a] divorced spouse has no right to exercise control over a former spouse's life, and a court may not attempt to create such a right through the alimony provisions of a divorce decree." Id. at 1138. Noting that a court may modify a divorce decree upon a material change in circumstances, the Gottsegen court further concluded that because the statutory authority of a court to award alimony is "grounded on the recipient spouse's need for support and the supporting spouse's ability to pay," "[a]ny event that triggers a change in alimony must bear some relation to the financial circumstances of the parties." Id.Because the trial court's ruling in favor of the former husband was not based on a showing that the former wife's financial circumstances had changed, the appellate court vacated that ruling and remanded the case for further proceedings.
Significantly, the Gottsegen court made the following observation in a footnote:
- The judge's lack of discretion to order alimony terminated on mere cohabitation does not prevent a divorcing couple from including such a provision in a separation agreement that survives the entry of a divorce judgment. In Bell v. Bell, 393 Mass. 210, 468 N.E.2d 859 (1984), cert. denied, ___ U.S. ___, 105 S.Ct.1392, 84 L.Ed.2d 782 (1985), this court affirmed the dismissal of a contempt complaint brought by the recipient spouse, on the ground that, under the terms of an independent, surviving separation agreement, Bell v. Bell, 16 Mass. App. Ct. 188, 190, 459 N.E.2d 109 (1983), she had "liv[ed] together with a member of the opposite sex, so as to give the outward appearance of marriage." Bell v. Bell, 393 Mass. at 21, 468 N.E.2d 859. The court thereby allowed the defendant husband to raise the surviving agreement as a bar to the contempt proceeding. See Knox v. Remick, 371 Mass. 433, 438, 358 N.E.2d 432 (1976).
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