Proving Cohabitation Under the Massachusetts Alimony Reform Act

A Massachusetts divorce lawyer Kimberley Keyes discusses the challenges of proving the cohabitation of an alimony recipient under the Massachusetts Alimony Reform Act.

Under the Massachusetts Alimony Reform Act, one statutory factor for suspending, reducing or terminating a general term alimony award is cohabitation. Under the Act, alimony is defined as “the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order.” Further, under Ch. 208, s. 49(d), the Act makes clear that “[g]eneral term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household, as defined in this subsection, with another person for a continuous period of at least 3 months.” In short, if the spouse paying alimony can prove that the receiving spouse is cohabitating with a new romantic partner, a probate and family court is required to suspend, reduce or terminate alimony.

What’s less clear under the Act is which party has the burden of proving (or disproving) that the recipient spouse is cohabitating. Here’s the answer: in terms of cohabitation, spouse who is paying alimony has the burden of proving that the receiving spouse is cohabitating with a new partner.

Table of Contents for this Blog:

A Question of Proof: is the Receiving Spouse Sharing a “Common Household” with a New Romantic Partner?
Obtaining Evidence of Cohabitation: What Kind of Proof Works in Court?
What Evidence is Essential? Proof the Couple Actually Lives Together
What Evidence has the Biggest Impact on Alimony? Proof of Shared Income, Expenses and Assets
What About Financial Support from a Romantic Partner when there is no Cohabitation?
What if Cohabitation Ends? Alimony can Re-Commence

A Question of Proof: is the Receiving Spouse Sharing a “Common Household” with a New Romantic Partner?

The key language in the Act relative to cohabitation is the need for a paying spouse to prove that a “common household” exists between the spouse receiving alimony and his or her new romantic partner. Luckily, common household is defined within the statute: “Persons are deemed to maintain a common household when they share a primary residence together with or without others.” It may be helpful to understand the Act’s definition of “common household” by breaking it down into its component parts:

primary
residence
together

The statute further provides that “[i]n determining whether the recipient is maintaining a common household, the court may [but not must] consider any of the following factors:

oral or written statements or representations made to third parties regarding the relationship of the persons;
the economic interdependence of the couple or economic dependence of 1 person on the other;
the persons engaging in conduct and collaborative roles in furtherance of their life together;
the benefit in the life of either or both of the persons from their relationship;
the community reputation of the persons as a couple; or
other relevant and material factors.

Obtaining Evidence of Cohabitation: What Kind of Proof Works in Court?

The question then remains: how does a paying spouse develop evidence proving that a former spouse is cohabitating? There are a variety of methods for procuring evidence of cohabitation, including the following:

Social media is often a ripe resource for procuring written statements and representations regarding the relationship of the person receiving alimony and their new cohabitating partner – think Facebook relationship status updates.
Photographs, either taken by the payor, published on social media, or the employing of a private investigator, are often excellent examples of suitable evidence designed to demonstrate conduct and collaborative roles as well as securing a community reputation as a couple.
A payor can use discovery to subpoena bank records, residential leases, depositions of landlords, etc. to demonstrate that the cohabitating couple share finances and liabilities which could support their economic dependence and/or interdependence.
Affidavits by a private investigator or other witnesses who have directly observed the couple may be used to interpret or tie together photographic or documentary evidence that suggests the couple primarily resides together.

What Evidence is Essential? Proof the Couple Actually Lives Together

The Act does not define which factors the probate judge must consider in determining and ultimately finding whether or not a recipient is, in fact, cohabitating. However, the fundamental feature of cohabitation is two peopleliving together. Anyone who has ever been in a serious dating relationship knows that the decision to live together is an extremely serious life decision. Indeed, many people date for years without making the leap to cohabitation. The payor’s main burden is to prove that the recipient and his or her new romantic partner are actually living together.

The most frequent defense raised by alimony recipients against cohabitation arguments is that the two partners maintain two separate homes or households in their individual names. This argument is frequently strengthened by documentary evidence such as leases, utility bills and government ID’s all showing that the former spouse and his or her partner maintain separate residences. Proof of cohabitation will be further muddied if the couple spends time at each partner’s official residence. Ultimately, a recipient spouse who can prove that he or she and the partner maintain separate homes can often prevail against a claim of cohabitation.

Indeed, alimony paying spouses must be mindful of the “grey area” between a serious dating relationship and cohabitation. If each romantic partner maintains his or her individual residence, the mere fact that each partner contributes financially to shared activities such as dates, meals and vacations may be insufficient to prove cohabitation. We no longer live in the 1950’s, when fixed gender roles dictated how men and women in a dating relationship spent their money and time. Dating relationships take many forms these days, and dating is not the same as cohabitation. That said, if a couple has been together for years, and one partner consistently sleeps at the home of the other – and appears to treat that partner’s residence as his or her primary home – then it may be possible to prove cohabitation, even if the partners maintain separate residences “on paper”.

What Evidence has the Biggest Impact on Alimony? Proof of Shared Income, Expenses and Assets

It is important to recognize that although Ch. 208, s. 49(d) calls for the mandatory suspension, reduction or termination of alimony when cohabitation is proven, the statute does not mandate the extent to which a court must actually eliminate alimony. Indeed, a judge who decreases a $500.00 per week alimony order to $475.00 per week after seeing proof of cohabitation has satisfied the technical requirements of the statute. In short, the payor has the burden to prove that cohabitation is occurring, but only the judge decides how much weight he or she will give to the evidence when suspending, reducing or terminating alimony.

Once cohabitation has been established, the evidence that is most likely to result in a substantial reduction (or elimination) of alimony centers on financial support that the recipient spouse receives from his or her romantic partner. There are two methods of proving financial support. First, bank records and other documents may demonstrate that the recipient spouse is receiving direct financial support from the new partner in the form of cash payments or the direct payment of the recipient’s expenses. The second method involves evidence that demonstrates that the recipient spouse’s lifestyle and/or station have markedly improved as a result of the partner’s financial strength. For example, perhaps the recipient spouse spends most of his or her time at the partner’s large home, driving the partner’s fancy car, and dining out at fancy restaurants with the partner. Even if the recipient and partner maintain separate bank accounts, the alimony payor may persuade the judge that the recipient’s lifestyle has dramatically changed as a result of the new partner’s financial means.

If documentary evidence establishes that the recipient and his or her new partner share bank accounts and household expenses, a payor can argue that such an economic partnership eliminates the need for alimony. Similarly, the paying spouse may argue that it is unfair for his or her alimony payments to be used to support the new partner, with whom the alimony paying spouse has no relationship.

What About Financial Support from a Romantic Partner when there is no Cohabitation?

If a paying spouse cannot prove cohabitation – or if proof of cohabitation is borderline – the paying spouse may still be able to obtain a reduction in alimony by proving that the former spouse’s new romantic partner provides substantial economic support to the recipient. The Act provides that alimony should be limited by the economic “need” of the recipient spouse, separate and apart from the cohabitation provision. If a new boyfriend or girlfriend is providing an alimony recipient with significant financial support, the paying spouse can argue that a substantial change in circumstances has occurred warranting a modification of alimony – regardless of whether cohabitation is occurring. Paying spouses should be mindful that judges are more likely to consider this argument if the recipient spouse is in a long-term relationship with a wealthier partner, whose financial support extends over many months or years. The mere fact that a recipient spouse has been dating a wealthy suitor for a few months probably is not grounds for a reduction in alimony, since such relationships often prove temporary.

All the way back in 1986, the Supreme Judicial Court held in Gottsegen v.Gottsegen (1986) that if, “as a result of cohabitation, the recipient spouse’s economic circumstances have materially changed, then the court may alter or eliminate alimony. However, a judge may not modify a judgment solely on the basis of a finding of cohabitation.” The same is true if a former spouse’s economic circumstances have materially changed as a result of a romantic relationship that does not involve cohabitation. The Appeals Court, in its recent unpublished opinion, Brumleve v. Ouellette (2015), performed the Gottsegen analysis as follows:

There is no indication that the wife’s earning capacity^[5] or expenses^[6]had materially changed between 2012 and 2014. In both 2012 and 2014, the wife reported a weekly contribution from household members of $100. To the extent that the judge chose to attribute a greater weekly contribution of $524 from the wife’s household members^[7], that additional amount was offset by the wife’s loss of $500 per week in income following the termination of child support in 2012.^[8]Additionally, the husband’s income had not “significantly changed,” and his expenses had actually decreased since 2012.^[9] It is therefore apparent that the reduction in alimony was not based upon a material change in the parties’ financial circumstances.

Although the court did not order an alimony reduction in Brumleve, the factors listed in the opinion provide helpful guidance for the areas where courts seek proof.

What if Cohabitation Ends? Alimony can Re-Commence

The Act provides that “[a]n alimony obligation suspended, reduced or terminated [under a finding of cohabitation] 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.” What this means is that when a pair of cohabitating fish call it quits, and the recipient goes back to the sea, they payor may very well find him or herself back on the alimony hook! Where the Act specifically dictates the duration of alimony based on the length of the parties’ marriage, a former spouse who stops cohabitating during the period when he or she is still eligible for alimony may seek a new alimony order. Where the primary purpose of the Act was to reduce the alimony burden of paying spouses in Massachusetts, this small benefit for recipients only seems fair.

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About the Author: Kimberley Keyes is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.

Schedule a consultation with Kimberley Keyes today at (781) 253-2049 or send her an email.