In the recent case of Reese v. Weis, the Appellate Court determined that permanent alimony should be terminated where the payee spouse had cohabitated for a period of ten years and received from her cohabitant/paramour gifts, lavish vacations, and payment toward her living expenses.
In all cases where alimony is awarded, the payor may apply to the court for modification or termination of alimony in the event there is a substantial change in circumstances. The payee’s cohabitation is considered a change in circumstance allowing the payor to seek modification or termination; however, cohabitation alone does not end the query. Further, review of the economic circumstances of the new relationship and its impact on alimony is necessary. For example, if a court determines that the cohabitant of the payee is providing financial support to the payee, or if the cohabitant is being supported by the payee, then alimony may be modified or terminated.
Cohabitation means more than sharing a common residence. It involves conduct whereby "the couple has undertaken duties and privileges that are commonly associated with marriage." Having joint bank accounts, sharing living expenses and household chores, and recognition of the relationship by the couple’s friends, family and community are some factors that indicate cohabitation as an intimate and enduring relationship.
In determining whether alimony should be modified or terminated in the event of cohabitation, the trial judge must determine, through evidence provided, whether the financial support provided by the cohabitant has altered the need for support from the payor to the payee. If the cohabitant is paying for or contributing to the payee’s necessary expenses (i.e., housing, food, clothing, transportation, insurance), then the payee is receiving a direct economic benefit which will affect alimony. In the Reese case, it was also determined that indirect economic benefits should be considered. Examples of this are moving into a cohabitant’s home without incurring housing obligations, or the receipt of gifts, vacations or other emoluments which enhance the payee’s lifestyle. More subtle economic benefits may occur as a result of intertwined finances where there is a subsidization of expenses by the cohabitant to the payee.
The court must also consider the characteristics of the relationship between the payee spouse and the cohabitant. Some considerations are the length of the cohabitation, the duration of receipt of the economic benefits, the length of the previous marriage, and whether the cohabitating relationship exhibits the indicia of marriage.
If a payee chooses to cohabitate and wants to continue receiving alimony, the payee must be able to prove his/her direct expenses as well as his/her payment of those expenses without any aid from a cohabitant. Separate bank accounts and credit cards should be maintained without any blurring of responsibility for the expenses incurred. Of utmost importance are the proofs to substantiate separate income and separate obligations since the burden of proof is on the payee to prove he/she did not benefit economically from sharing a household or provide a financial benefit to the cohabitant.