Cohabitation: What is it?

Cohabitation typically refers to two people in an intimate relationship living together while not being married.  According to a USA Today article summarizing recent cohabitation statistics, cohabitation is increasing significantly.  Women cohabiting with men as a first union has increased from 34% in 1995 to 48% in 2010, and the length of time that this first cohabitation has lasted is increasing as well.  With cohabitation increasing, the likelihood of children born out of wedlock increases as well.

In post-divorce situations, cohabitation often comes up in alimony cases.  Because alimony ends upon remarriage of the recipient it is common for recipients to cohabit instead of marrying when in an intimate relationship to avoid the end of their alimony.  While it was always possible to argue that cohabitation reduced the need of the recipient, the Alimony Reform Act of 2011 included cohabitation specifically as a reason for terminating, suspending or reducing alimony.

M.G.L. c. 208 s 49(d) reads specifically that:

"General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household, as defined below, with another person for a continuous period of at least 3 months.

(1) Persons are deemed to maintain a common household when they share a primary residence together with or without others. In determining whether the recipient is maintaining a common household, the court may consider any of the following factors:

(i) oral or written statements or representations made to third parties regarding the relationship of the cohabitants;
(ii) the economic interdependence of the couple or economic dependence of 1 party on the other;
(iii) the common household couple engaging in conduct and collaborative roles in furtherance of their life together;
(iv) the benefit in the life of either or both of the common household parties from their relationship;
(v) the community reputation of the parties as a couple; or
(vi) other relevant and material factors.

(2) An alimony obligation suspended, reduced or terminated under this provision may be reinstated upon termination of the recipient’s common household relationship; but, if reinstated, it shall not extend beyond the termination date of the original order."

Because the law has only been in effect since March of 2012, there is no guidance from the appeals court yet on how this section will be interpreted.

It is important to note that while the language allowing Judges to terminate, suspend or reduce does give discretion as to how much a cohabitation will change alimony, the Judges do not have discretion in whether or not to make some change because the language begins with "General term alimony shall be..."