Terminating Alimony by Proof of Cohabitation

By Jim Warren

In North Carolina family courts, judges award alimony payments—either by lump some or installments—to a “dependent spouse” payable by the “supporting spouse.” In simplest terms, we define a dependent spouse as the individual who makes less money within a marriage, while the supporting spouse typically earns more money. Thus, upon the entry of an alimony order, one spouse is mandated by the court to support the other, sometimes for a specific period, while other orders require payment for an indefinite period, ended by the death of either spouse, remarriage of the dependent spouse, or cohabitation by the dependent spouse.

However, some dependent spouses enter into cohabitation, which can trigger the end of court-ordered alimony payments. Proof of cohabitation is often difficult, and there is a specific test applied by the family courts according to North Carolina statute. According to NCGS 50-16.9(b), cohabitation in our state is defined as “two adults dwelling together continuously and habitually.” This living situation is “evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people.” While many may think that a sexual relationship must be evidenced for proof of cohabitation, the courts have deemed this unnecessary.

So, if you’re currently paying alimony, and you suspect that your former spouse has entered into cohabitation with another person, how can you prove it? Often, there’s no joint lease or mortgage to prove joint tenancy or ownership, as couples may live together in a residence acquired by lease or purchase by one person. If this factual evidence is non-applicable, the courts have typically considered several factors to determine existence of cohabitation. You’ll quickly ascertain from this list that some of these factors can fall into gray areas, while others are more black-and-white:

·       Public displays of affection

·       Co-mingled financial assets

·       Sharing meals, both at home and dining out

·       Vacationing together

·       Personal property at each other’s place of residence

·       Monogamous sexual relationship over a long period of time

In my 30-plus years of practice, I’ve seen judges look for as many factors as possible to render a decision for proof of cohabitation. The preponderance of evidence, often a combination of the factors listed above, is required to persuade the judge, as with many other decisions they must make in the course of determining matters of family law.

In short, judges are looking to determine if the alleged cohabitation resembles a married relationship.

If you are paying alimony to a former spouse and think that he or she has entered into cohabitation, you need to know your options. Your attorney will need to file a motion with the court to terminate the alimony, and you’ll need evidence for proof of cohabitation to support your motion. Contact us today to stop the financial bleeding you may be wrongfully suffering.