What is Cohabitation?
Cohabitation is a legal term that describes a romantic relationship in which a couple decides to live together in the same home for an extended period of time. A couple that cohabitates may or may not have decided to marry at some point in the future, nor is it required that the couple have any intention of marriage at all. As a designated, legally acceptable arrangement in some states, Florida is included in those states that recognize the validity of cohabitation. However, it should be noted that this is not the case in all states.
Unlike a marriage, where there is a number of responsibilities that a couple must assume under the law, a couple who cohabitate are not bound by the same obligations as a couple who is married. Cohabitating couples are not subject to the same preservation of property nor are they expected to file joint tax returns , and as such, they are not subject to the same type of dissolution proceedings as married couples when that relationship comes to an end.
Florida Statute 61.10 refers to spouses who cohabitate with another person and provides for legal justification for the termination of payments or equal distribution of property as detailed in the agreement or court order for alimony payments. Under this law, the relationship between the cohabitating partner and the recipient of support is examined to determine the validity of the relationship. In Florida, there is no legal definition nor a list of criteria for what constitutes a cohabiting relationship. This type of relationship is determined on a case-by-case basis.
How Cohabitation May Impact Alimony
The definition of cohabitation is "to dwell together as husband and wife in the same place under the same roof." It is the idea of two people who aren’t legally married, living together and sharing a relationship that, to some extent, resembles that of a legal marriage. A cohabitant may be either a partner with whom an alimony payer lives, or a person (usually a man) living with two women, paralleling the Bible’s story of the "two women living together in one place".
In Davis v. Davis, 653 So.2d 104 (Fla. 5th DCA 1994), the husband’s alimony obligation was reduced downward when the wife alleged that the wife was living with another man. The alimony payer had evidence that the wife’s relationship with the cohabitant had progressed from a platonic to a romantic one.
Therefore, the cohabitant is not just living in the marital home with the ex-spouse, but is living in the marital home and providing some financial support to the ex-spouse, thereby lessening the ex-spouse’s need for former spousal support.
When the second spouse provides financial support to the first spouse, the party seeking to reduce the alimony amount must demonstrate that his or her needs are being adequately met by the other party through the relationship.
Florida Statute Chapter 61.14(1)(2009):
"Upon the petition of either party to a proceeding for alimony or support, . . . the court may set aside, reduce, or terminate the alimony, or both, or order a modification of the alimony award . . . . In determining whether the needs of the recipient have been met from all sources, the trial court should consider the living expenses of the recipient spouse, the expenses of any cohabitant living with the recipient, and the income of the cohabiting partner. Williams v. Williams, 921 So.2d 693 (Fla. 1st DCA 2006).
As a Florida Supreme Court case stated: Spousal support is intended to provide the payee a financial "safety net" in the form of monthly payments of specified amounts. That safety net is diminished as a result of the payee’s having timely and appropriate relationships with other individuals. Danforth v. Danforth, 699 So.2d 1060,1061 (Fla. 1997).
The payor has the burden of demonstrating that the payee’s needs are being met and lessened due to the cohabitation.
Florida Statutes on Reduction or Termination of Alimony
If a Florida Court determines that a former spouse is living in a supportive relationship with another person, the court may modify or terminate an award of permanent alimony. Florida law provides that evidence of cohabitation sufficient to reduce alimony requires a showing that the supported spouse is living openly and habitually with a person of the opposite sex in a supportive, intimate, and committed relationship which resembles that of a husband and wife. There is no bright line rule with respect to the level of support necessary to obtain a reduction or termination. Some courts have held that the unsupported spouse must be receiving more than mere economic benefit (i.e., free room and board).
The trial court has jurisdiction under Florida law to reopen a final order of dissolution when it is shown that the supportive relationship began after entry of the final judgment of dissolution or under a modification of that judgment. Courts may consider evidence of ability to work, the number of parties supported by the primary payor or payees, the relative abilities to support those that are dependent upon them and the underlying financial considerations at the time of the previous hearing. The courts also must consider whether the party receiving or paying alimony has undergone lifestyle changes and whether there are any special circumstances requiring further investigation.
The threshold inquiry in any cohabitation modification is whether the relationship has the requisite permanence, as opposed to a transitory or imaginary living together. The analysis then focuses on the change in circumstances resulting from the cohabitation. The inquiry is not whether the ongoing alimony obligation is appropriate in light of the cohabitation, but whether the alimony obligation should be modified to account for changed circumstances brought on by the cohabitation.
Required Proof for Modifications of Alimony
When seeking to modify or terminate an alimony award based on the other party’s alleged cohabitation, the burden of proof falls upon the paying spouse (obligor). The obligor must produce evidence in to demonstrate not only a supportive relationship, but also a shared financial life and a lifestyle similar to the parties’ prior standard of living before and during the divorce. In order to establish the former spouse’s new life of the former spouse and compare it to the "other spouse," admissible evidence such as the following should be produced:
- (1) Companionship, sexual relations and sharing of living expenses are factors to demonstrate a supportive relationship. However, proof of sexual relationship alone is not enough to terminate alimony but rather just one factor to consider.
- (2) The relationship must exceed the mere existence of friendship . The evidence should demonstrate a relationship in the nature of marriage.
- (3) While frequent vacations are not necessary, those vacations should be comparable to the vacations taken by the parties during their marriage.
- (4) A change in the parties’ standard of living (lifestyle) is key in establishing a basis for termination of alimony.
- (5) The new relationship should have a continuous nature.
- (6) Circumstantial evidence of a new relationship, such as photographs conveying the parties’ close relationship, attendances at various functions together, emails and other correspondence are not necessarily sufficient evidence to establish a supportive relationship that warrants alimony termination.
- (7) The lack of evidence that the new household results in a reduced economic burden on the obligor is not sufficient to deny alimony termination.
Recent Examples & Cases
A recent case decided by the Florida Third District Court of Appeals is Simescu v. Simescu, No. 3D18-356 (Fla. 3d DCA April 3, 2019). In this case, a husband appealed a trial court order that terminated his ex-wife’s alimony. The trial court found that the ex-wife stopped using her ex-husband’s last name after meeting a new boyfriend. The trial court also heard testimony that the new boyfriend, who is married to someone else, visits the ex-wife at her home. The parties previously entered into a Marital Settlement Agreement which required the ex-wife to keep her ex-husband’s last name for one year after the divorce. Thereafter, the court stated that the new boyfriend’s behavior frustrated the marital settlement agreement, which precluded her from changing her online profile for one year, unless she could show him or his wife are proximately involved. Strictly construing the marital settlement agreement, the court concluded that the ex-wife terminated her alimony obligation when she violated the provision in the agreement restricting her from changing her last name.
The trial court held that in light of the ex-wife’s new boyfriend’s conduct, the ex-wife breached the marital settlement agreement, which terminated her alimony. The only difficulty was that the new boyfriend’s behavior occurred in violation of the marital agreement and a change of name violation fits more into a contempt of court issue, rather than the theory on which the trial court terminated the support. Nonetheless, there was sufficient evidence for the trial court to find that the husband failed to meet his burden of showing that the ex-wife’s name change activity amounted to a permanent resumption of her maiden name. Specially, the trial court did not hear any evidence that the new boyfriend resides with the ex-wife or claimed her as his spouse. Additionally, there was no evidence that the new boyfriend held her out to the public as his spouse, that they share their finances, or that they have children together. Accordingly, the husband failed to present clear and convincing evidence that there was a similarity between a marriage and a merely cohabitating relationship. The trial court failed to follow the provision of the agreement limiting whether Cohabitation automatically terminated the ex-wife’s alimony. Because the ex-wife did not waive the provision, the court erred when it failed to determine whether her alimony terminates when she uses the name of another married person.
The Florida Second District Court of Appeals in Mauk v. Mauk, No. 2D17-353 (Fla. 2d DCA Mar. 8, 2019) affirms the trial court’s decision not to terminate the former husband’s alimony obligation where the former wife had not proven that she was in a supportive relationship. At the final hearing the former wife testified regarding the source of income by her new boyfriend, his employment history, and whether the boyfriend provides her with regular financial support. However, there is insufficient testimony that establishes the other requirements for a life partner relationship. In Kelly v. Kelly, No. 4D18-2516 (Fla. 4th DCA Apr. 3, 2019) the court reversed the trial court’s decision that denied the husband’s motion to modify alimony where there was a substantial change in circumstances even though the wife made a prima facie case that the husband was not cohabiting. From the evidence presented, there was an uncontradicted testimony that the wife moved another gentleman into the former marital home, uses his rental car, and lists him as the significant other on her Facebook page whom she plans to marry. The court found that the trial court’s conclusion that the husband carried the burden of proof and, thus, the wife did not need to provide more evidence of redistribution for support waiver error.
Alimony Considerations and Advice
Given how personalities and personal relationships can become involved in a divorce (financially, emotionally and otherwise), it’s important to note that families dealing with cohabitation and alimony issues should not take legal advice from friends, family or advice columns in newspapers and online. Remember, when people get divorced, they tend to talk about it a lot, including providing opinions on what should or shouldn’t happen as a result of the situation . While these comments do come from a place of concern for the divorcing spouse, many people "just don’t get it," when it comes to the specific legal issues and how those can be affected by any number of other things — primarily, financial issues pertaining to alimony.
If you suspect that you, your spouse or anyone that may have a financial interest in your alimony award, will be cohabiting in the near future, it is critical that you retain a competent family law attorney as soon as possible in order to discuss the potential impact on you.