If there is a significant disparity in the economic positions of two spouses, alimony (also known as spousal support or maintenance) will almost certainly be an issue in a divorce case. The immediate determination will be how much one spouse should pay to the other to help support them until they can obtain the education or training to support themselves. Most cases have an end-date for alimony payments. However, in cases involving long marriages, very high assets, or one spouse who cannot work, alimony may continue on indefinitely.
In long-term alimony cases, the paying spouse will likely try to put conditions on the continuation of alimony payments. Some conditions include remarriage of the recipient or death of either spouse. Another common condition is that alimony terminates if the recipient begins cohabitating with another romantic partner. The idea behind this clause is that if the recipient is receiving economic support and sharing living expenses with another person, they should no longer have to rely on alimony to cover their expenses. While this condition should seem relatively straightforward, many different legal issues can arise if a cohabitation clause comes into effect.
False Appearance of Separate Residences
In some cases, a spouse receiving permanent alimony with a cohabitation clause will cohabitate with another partner but will take many steps to make it appear as if they do not actually live together so as not to risk losing alimony payments. This can include the new romantic partner maintaining a separate residence but not actually residing there. Courts will not automatically consider maintenance of separate homes to mean they do not live together. Instead, courts can examine other indications that the pair are cohabitating to make their determinations whether alimony should continue or not.
What Happens if the Cohabitation Ends?
In one recent case in New Jersey, a former husband filed to end alimony because his former wife was cohabitating with another man. However, one month after the case started, the cohabitation ended and the former wife fought to keep receiving alimony payments because she relied on them without any other financial support. However, the Supreme Court in NJ held that once cohabitation began, the cohabitation clause came into effect and the husband had the right to end alimony whether or not the new romantic relationship continued.
It is important to note that not any romantic relationship will end alimony and spending a few nights together will not constitute cohabitation for the purposes of alimony. However, alimony recipients should carefully consider the impact of a cohabitation clause before they agree to it.
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