Alimony and Cohabitation

In Separation & Divorce by Elizabeth Stephenson

Post-separation support and alimony (spousal support) are designed to maintain and financially provide for a “dependent” spouse following a separation. A court weighs numerous factors when deciding alimony, some of which include marital misconduct, the length of the marriage, the relative earnings and property of each spouse, the earning potential of the spouses, the needs and conditions of each spouse, and the couple’s standard of living.

Spousal maintenance payments are a contentious issue when a couple separates. While a dependent spouse often needs this support, the “supporting” spouse is frequently reluctant to pay it. Or at the least, wants to pay as little as possible. Even after a post-separation agreement or alimony order is entered, supporting spouses often look for ways to reduce or end their support obligations. One of the ways that they can successfully end their alimony obligation is to prove “cohabitation”.

Modifying Alimony Based on Cohabitation

The general statutes also allow for the modification of post-separation or alimony orders “at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.” One of the express changes of circumstances includes the factor of cohabitation. Specifically, “[i]f a dependent spouse who is receiving postseparation support or alimony from a supporting spouse under a judgment or order of a court of this State remarries or engages in cohabitation, the postseparation support or alimony shall terminate.”

The statute defines cohabitation as:

  • “the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship”; and
  • the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.

Appellate Courts have adopted this definition as a two part test that a party must meet to establish cohabitation.

While this law may seem like it is meant to punish dependent spouses for entering into a new relationship, the legislature has stated that the goal of the provision is “to terminate postseparation support and alimony when the relation has an economic effect and when someone is acting in bad faith to avoid termination” and that there is “not the goal of imposing some kind of sexual fidelity on the recipient as the condition of continued alimony”.

Let New Direction Family Law Assist You

If you need help with an issue involving post-separation support or alimony payments, contact New Direction Family Law. We pride ourselves in our knowledge of the law, treating our clients with respect, and our ability to effectively advocate for our clients’ legal rights. Our team proudly serves Wake, Johnston, Durham and surrounding counties. Contact New Direction Family Law today at (919) 719-3470 to schedule a consultation, or visit us at our website.