By, Diane L. Danois, J.D., Family Law Mediator/Divorce Coach, Florida
Paying spousal support is often considered the price many men must pay to extricate themselves from a bad marriage. It’s cynically considered the cost of doing business. While the calculations used to formulate the spousal support award amount may seem complicated, the metrics are relatively straightforward. Alimony calculations are supposed to be based upon the recipient’s need for financial support, and the payer’s ability to provide the financial support… typically multiplied by x-number of years. That seemingly simple formula is not so simple, when shortly after the Final Divorce Decree is entered, the pendulum swings in the other direction, and the recipient’s need is reduced because of a third party off-setting the overall costs of living. That third party is usually a new boyfriend, who is suddenly living with the recipient ex-spouse, and who is consuming the spousal support that had originally been awarded for shelter, utilities, maintenance, food, etc.
This article is not going to debate the need for alimony reform, a hot topic already addressed by millions in almost every jurisdiction. Instead, I’d like to focus on what (mostly) men can do when faced with the narrow issue of “cohabitation,” meaning, how can they have their alimony obligation adjusted or terminated when the recipient former spouse is clearly living with someone else, but denies doing so in order to continue to collect spousal support.
Cohabitation is the term used to describe a scenario whereby an alimony-receiving ex-spouse is living with a member of the opposite sex “in the manner of husband and wife, mutually assuming those rights and duties usually attendant upon the marriage relationship.” Seems pretty simple, right? The unfortunate reality is that what demonstrates “cohabitation” is ill-defined by most Courts and vague in most Marital Settlement Agreements and Divorce Decrees. This leaves the payer ex-spouse in an unenviable weak position because the courts are loathe to terminate an alimony obligation without solid proof. The evidence needed to provide that proof is often costly, as it typically requires a hefty investment in private investigators, attorneys, and other related expenses. Often, many men in this situation conduct their own internal cost-benefit analysis, to help them make the final decision whether it’s even worth pursuing.
Here’s the thing: though it may grate on your last nerve, the truth is that your ex is allowed to be in a new relationship! She’s allowed to bring him to family gatherings and take vacations together. She can wine and dine him, and may even buy him expensive gifts. However, the waters begin to muddy and the clearly defined lines begin to blur when the new paramour is spending so many overnights together that the cloaked relationship moves to a different level and begins to look more like a marriage than a casual romance. When his toothbrush has its own holder, when his dirty laundry is washed with hers, when the garage is filled with his boxes of memorabilia, and when he lovingly mows the lawn or watches the kids… these are all elements that may be considered when evaluating whether this new relationship has morphed into one which enjoys social, sexual and financial interdependencies, as a typical marriage. All of these things have an economic value, and the assumption is that the couple is in a mutually supportive relationship such that the need for alimony payments from someone else is reduced or extinguished.
What steps can you take to prove that a cohabiting relationship exists? What evidence can you gather? Consider the following:
· Modest investment in a private investigator can result in some important information relating to household chores, outdoor maintenance, shopping routines;
· Cell tower location records (geolocation data) can cost-effectively reveal evidence suggestive of historical overnight stays going back as much as 2-3 years by tracking the whereabouts of a person’s cell phone device 24/4/365;
· Social media sites such as Facebook and Instagram can reveal evidence relating to travel, religious activities, status and other social intertwinings of the relationship.
In sum, you don’t need co-signatures on a lease (though that’s a nice factoid for your case!) nor videos of the couple traveling to Hawaii (though matching suitcases would be interesting!). What you do need is a reasonable demonstration of that loosely, ill-defined social, sexual and financial relationship that the courts call “cohabitation,” such that would give rise to a reasonable person concluding a marital-like relationship.