Alimony can be terminated or modified if the supported spouse takes up permanent residence, or “cohabitates,” with an unrelated person akin to a marriage. If the cohabitant supports or subsidizes the supported spouse it is considered a changed circumstance warranting review of the alimony obligation. Interestingly, alimony can also be reviewed if the cohabitant lives with the supported spouse for free and does not contribute to the household expenses. The idea is that the alimony is unfairly benefiting the cohabitant.
Upon a prima facie showing that the supported spouse is cohabitating, the burden actually shifts to the supported spouse to prove that they are not benefiting economically from the cohabitation. Therefore, when the burden shifts, the supported spouse must be the one to show the court that alimony should not be terminated or modified. This makes sense because the supported spouse is the one with all of the information regarding their cohabitation and finances. The inquiry itself is to look at the supported spouse’s finances and resources only.
The procedure to terminate or modify alimony because of cohabitation is to file a motion with proofs showing that the supported spouse is cohabitating. If you have enough proof, the court should order a plenary hearing, or trial, on the issue of cohabitation and the economic benefit of same. As stated above, it is the supported spouse’s burden to prove that they are not receiving an economic benefit, so the trial will mainly focus on their proofs.
It is important to note that the court has the authority to retroactively modify alimony to the date that the cohabitation began. As discussed in a prior blog post, if a party is acting in bad faith with respect to cohabitation, the court can also award counsel fees.
If you believe that the person you are paying alimony to is cohabitating, you should contact me today to discuss your options because your alimony could be modified or terminated. Likewise, if you are the dependent spouse and are faced with a cohabitation case, you should give me a call to discuss your options.