Many people are aware that a remarriage can end a former spouse’s alimony, but not everyone realizes that cohabiting after a divorce can also affect alimony.
This is a particularly important issue given how many couples are choosing to live together rather than marry. The percentage of married households in the United States has fallen to a historic low; census data cited in a 2014 study by the Pew Research Center shows that the number of married households fell to 50.5 percent in 2012 from a high of about 72 percent in 1960.
Here is Connecticut’s so-called cohabitation statute:
In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.
Conn. Gen. Stats. §46b- 86(b)
In Connecticut, “An award of alimony is based primarily on a spouse’s continuing duty to support . . . . ” Martone v. Martone, 28 Conn. App. 208, 217, 611 A.2d 896 (1992). The logic underlying the cohabitation statute is likely that cohabitation may reduce the need for spousal support, as (1) sharing a household gives rise to economies of scale, and (2) the new partner’s income may be available to cohabitant former spouse.
Public testimony in 1994 on the public act that became the cohabitation statute indicated that the intent of the statute was to “correct” a situation in Stamford that had resulted in a state Supreme Court case where “somebody claimed that his wife was living with somebody else, out of wedlock and that therefore, he was not responsible to give her alimony and he lost that case.”
The case that was referred to was probably McAnerney v. McAnerney, 165 Conn 277 (1973), in which a separation agreement, later incorporated in the dissolution decree, obligated the plaintiff ex-husband to pay alimony to his ex-wife until her remarriage or death. He subsequently sued because she was cohabitating with a man, arguing that he was no longer bound by the agreement because his ex-wife and her partner had created a condition approximating marriage thus circumventing the terms of the agreement. The Court held that neither of the terms of the agreement, death or remarriage of the wife, had occurred and that Connecticut law did not recognize common law marriage, and thus the plaintiff husband had no cause of action against his ex-wife.
So, what is the standard for modifying an alimony award due to cohabitation? The court in DeMaria v. DeMaria explained that “Section 46b-86 (b) does not use the word cohabitation. The legislature instead ‘chose the broader language of ‘living with another person’ rather than ‘cohabitation’. . . .’ Because, however, ‘living with another’ person without financial benefit did not establish sufficient reason to refashion an award of alimony under General Statutes § 46b-81, the legislature imposed the additional requirement that the party making alimony payments prove that the living arrangement has resulted in a change in circumstances that alters the financial needs of the alimony recipient. Therefore, this additional requirement, in effect, serves as a limitation. Pursuant to § 46b-86 (b), the nonmarital union must be one with attendant financial consequences before the trial court may alter an award of alimony.” DeMaria v. DeMaria, 247 Conn. 715, 720, 724 A.2d 1088 (1999) (emphasis added).
In other words, not only must the alimony recipient be living together with someone, but those living arrangements must also have a financial effect on the alimony recipient.
How do you prove an alimony recipient is “living together with” another person? That’s a topic for a separate blog post.