If you are contemplating cohabitation with a third party, or if you believe your former spouse is cohabiting with a third party, what are the consequences of cohabitation?
The Decree of Divorce (or similar order) should dictate conditions governing alimony: in particular, how it is to be paid, when it is to be paid, how long it should be paid, and under what conditions alimony should be terminated.
Most orders awarding alimony will include language terminating alimony “in the event that the obligor dies, remarries, or cohabitates.” If the order is silent, a party may still petition the court for a termination of alimony under Utah Code § 30-3-5, which provides “Any order of the court that a party pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.”
(If you are the payor spouse, do not terminate your payments of alimony without court permission or stipulation of your former spouse. This will subject you to a contempt order and, if you are unable to meet the elements that your former spouse is paying alimony, harm your entire case.)
Now that you understand the consequences of cohabitation, how is cohabitation established?
Whether you are the payor or the recipient of alimony, you should be aware of the elements needed to establish cohabitation.
The general hallmarks include (1) a shared residence, (2) an intimate relationship, (3) a common household (shared expenses, shared decisions, shared space, and shared meals) and (4) continuity.
In the Levin v. Carlton-Levin (2014 UT App. 3 (Utah Court of Appeals, 2014)) opinion, this appellate court found that a woman (“Carlton”) had cohabitated when she and the man (“Tucker”) she was living with:
Under these factors, the appellate court agreed that the Carlton and Tucker were cohabitating. The consequences? Under the parties’ Decree of Divorce, upon cohabitation Carlton’s award of alimony (of $15,000 per month) reduced to $7,500 per month. While this isn’t a total elimination of alimony, Carlton lost approximately $90,000 a year because of her cohabitation.
While the totality of the evidence in Carlton v. Carlton-Levin established cohabitation, the factors above do not all need to be established for a cohabitation argument. Under the Cox v. Cox (2012 Utah App. 225, 285 P.3d 791) analysis, establishing cohabitation requires a “fact-intensive inquiry.”
In conclusion, cohabitation with another party has potentially long-lasting consequences to the recipient of an alimony award. Because it is almost certainly worth it for a payor to conduct this investigation and petition to eliminate alimony (if the recipient does not stipulate to the elimination upon presentation of the evidence), all parties need to be aware of the consequences of cohabitating with another party.