Whether you are the one paying or receiving spousal support, you should understand the concept of cohabitation and what it means for potentially ending or reducing spousal support. Simply living together with a new partner doesn’t automatically mean spousal support will end.
Cohabitation’s legal definition
Cohabitation requires the new partner to assume obligations equal to those that would result from an actual marriage. There are two parts to assuming those obligations: shared financial responsibility and consortium between two parties. Let’s discuss these two elements in more detail.
Part 1: Shared Financial Responsibility
If you are living with your new partner, are they helping to support you in any way? Conversely, are you supporting them financially? Spousal support received from an ex-spouse is provided only to support the other spouse, not the other spouse and their new partner.
What constitutes providing support? If you are sharing all the bills or you are opening joint accounts, putting both names on mortgages or leases, or combining funds, that could be evidence that the new partner is sharing the financial responsibility of supporting you. However, even if they are providing support, the next question the court would consider is how much support is being provided. If the financial assistance being provided is less than what the ex-spouse is paying in support, the court may review the order for spousal support and consider lowering the amount instead of terminating it.
A new partner could live with you the majority of the time, but contribute nothing financially, and a court could determine that it does meet the threshold for cohabitation. If the new partner is still maintaining a separate residence, paying all their own bills, and there are no joint financial obligations being undertaken, there would be no evidence of shared financial responsibility. In other words, you pay your bills, they pay theirs, and it doesn’t matter how much of the time they stay at your house.
However, if that new partner has completely moved in but contributes nothing financially, a court may still review the support order and reduce the amount of support based on what they think the new partner should be providing in terms of financial support.
Part II: Consortium
Consortium is the legal term for a romantic relationship, and it is the second required element to proving cohabitation. In addition to receiving financial support, the spouse and new partner must also function as husband and wife, sexually or otherwise.
Consortium does not mean sex. It includes mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations. The presence – or absence – of a sexual relationship does not determine if there is consortium. You can live like a married couple without a sexual relationship, and conversely, you may have a sexual relationship but just consider each other friends and nothing more. The intent of the relationship matters more, and how you present yourselves to the world: as a couple, or not.
Proving that your ex is receiving financial support from a new partner can be a big hurdle to jump. How do you know if the new partner is providing food or clothing, sharing the expense of the housing and utility costs, or co-mingling assets? You may be able to see that they are living together, but proving cohabitation is much harder.
Consortium might be more obvious. Has your ex changed their Facebook status to “in a relationship”? Are they posting pictures calling the new person their girlfriend or boyfriend? How they present themselves on social media, and to the world at large, may be on display for everyone to see.
There is no silver bullet
There are so many different circumstances surrounding cohabitation that each case must be reviewed on its own merits. Don’t think because your ex moves in with someone that you can yell “Cohabitation!” and terminate your spousal support. Don’t think that you can’t move in with your new partner or you’ll automatically lose all of your spousal support. And don’t assume that support is an all-or-nothing proposition… it can always be modified instead of terminated.
Your best bet
If you’re paying spousal support and think your ex is either receiving support from a new partner or supporting a new partner, it’s time to get some legal advice. If you’re receiving spousal support and you’re thinking about living with your new love interest, it’s time to get some legal advice. The choices you make now could have a large financial impact on your future, and you need to make sure you’re aware of the consequences of your decisions.
It’s best to contact a lawyer who practices family and divorce law, like the experts at Kirkland & Sommers. A family law specialist will be able to help you define cohabitation and will be intimately familiar with the case law outlining cohabitation. They’ll also have the experience with local courts and can tell you how certain arrangements may be viewed by some magistrates. You’ll also learn what type of evidence to collect or look for to prove your position.
Regardless of which side of this issue you may be on, we can help. Call the experts at Kirkland & Sommers for your free consultation today and let us help you protect your rights and your money.