As part of the resolution of a divorce, the spouse who earns less money may be awarded alimony, which is support that is paid after the divorce decree has been entered. How much alimony will be awarded and how long the award will last depends on a long list of factors, including each spouse’s income or earning capacity, each spouse’s separate assets, the duration of the marriage, and the marital misconduct of either spouse. But the main determination of an alimony award is the receiving spouse’s unmet needs; in other words, how much his or her reasonable living expenses exceed his or her income.
No matter what duration the alimony is awarded for, by law it will terminate upon the first to occur of the death of either spouse or the remarriage of the spouse receiving alimony. But Pennsylvania statutory law also provides that an award of alimony will terminate upon cohabitation of the spouse receiving alimony “with a person of the opposite sex who is not a member of the family of the petitioner within the degrees of consanguinity.” 23 Pa.C.S.§ 3706.
Cohabitation is further defined by case law as when a man and a woman “reside together in the manner of husband and wife, mutually assuming those rights and duties usually attendant upon the marriage relationship.” Lobaugh v. Lobaugh, 753. A.2d 834, 83 (Pa. Super. 2000). Thus, the court looks at evidence of “financial, social and sexual interdependence” to determine whether the termination of alimony is warranted due to cohabitation. Id.
Without an acknowledgment by the spouse receiving alimony that he or she is cohabitating, it must be proven in court. This involves filing a petition to terminate alimony and offering evidentiary proof of the cohabitation. For instance, the party trying to terminate his or her alimony obligation must show evidence that the ex-spouse receiving alimony is involved in a romantic relationship, has spent a certain amount of time staying overnight in the same residence as the alleged romantic partner, and has shared financial and household duties with the alleged romantic partner. Gathering such evidence often requires hiring a private investigator, so that pictures and videos can be shown of the spouse and the romantic partner at the same residence late at night and early the next day, and participating in various household duties. It may also require sending subpoenas to financial institutions so that documents can be produced to show that the spouse and the romantic partner are both contributing to household expenses.
For example, the former spouse that is trying to terminate alimony based on cohabitation would want pictures showing the alleged romantic partner using his or her own key to get into the ex-spouse’s house, taking out the trash and picking up the mail, and kissing the spouse goodbye in the morning before leaving for work. Bank statements showing that the alleged romantic partner has been paying the cable bill at the ex-spouse’s house, and a copy of the alleged romantic partner’s driver’s license, which uses the ex-spouse’s address, would also be good evidence of cohabitation. A finding of cohabitation is highly fact-sensitive, so whether cohabitation is found will depend greatly upon the specific evidence that is presented in court.
Although the statutory definition of cohabitation seems to include a roommate rather than a boyfriend or girlfriend, the case law makes it clear that for a living situation to rise to the level of cohabitation there must be a romantic or intimate aspect to the relationship. The question now, however, is what happens when a former spouse who is receiving alimony starts to live with his or her new same-sex partner. The statute only refers to “a person of the opposite sex,” and the case law refers to a husband and wife. Now that same sex couples can marry in Pennsylvania, it is likely that the law will need to evolve to include cohabitation by same sex couples as a bar to alimony.
Many have felt it to be unfair that the former spouse who is paying alimony is free to cohabitate or remarry, while the former spouse who is receiving alimony cannot without having his or her alimony obligation terminated. But it is possible to enter into an agreement whereby the alimony will not terminate upon cohabitation.
Because there is a cost to producing evidence and preparing for court, whether it makes financial sense to pursue a claim to terminate alimony based on cohabitation depends on the amount of the alimony being paid and how much longer it needs to be paid. A divorce lawyer from King of Prussia’s Vetrano|Vetrano & Feinman LLC can help you decide whether it makes sense to pursue such a claim through the court, and what you would need to do so, or whether you may be able to defend such a claim if you are the spouse receiving alimony. Visit the Vetrano|Vetrano & Feinman website today at https://www.vetranolaw.com/ to learn more.
Our experienced family lawyers take the time to fully understand the financial and emotional complexities that can be involved in separating two lives. We offer the patience and resources to effectively guide clients through a divorce, addressing all the challenges they may face in moving forward with their lives. To learn more about how we can help protect your rights and interests in a complex divorce, contact the Pennsylvania divorce attorneys at Vetrano | Vetrano & Feinman LLC.