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It's the Law: Alimony can be reduced or terminated due to cohabitation
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Q: My ex-wife has been living with a man for years. She tells me that she will never get married because she wants me to keep paying alimony. I know that Florida does not have common law marriage, but can’t I get out of paying alimony now that she is living with someone else?
A: Florida courts have often considered cohabitation by a recipient as a basis for reducing alimony. Cohabitation was treated just as any other change in circumstances justifying modification of alimony.
The prerequisites for modification of alimony are: 1) a substantial change in circumstances; 2) that was not contemplated at time of final judgment of dissolution; and 3) is sufficient, material, involuntary and permanent in nature.
Where courts found cohabitation to be sufficient, the cohabitant provided support to the person receiving alimony and that the circumstances were likely to continue. Many of the earlier cases treated the cohabitant as a tenant proving an income stream to the person receiving alimony.
In 2005, the legislature added a new section to the divorce statutes. F.S.61.14 (b) now provides that courts may reduce or eliminate alimony where a supportive relationship has existed between the person receiving alimony and someone residing with that person.
The burden of proof is on the person paying alimony. That person must prove by a preponderance of evidence that a supportive relationship exists. Statute mandates that courts consider all circumstances in determining the relationship between a person receiving alimony and another person. The statute also mandates consideration of the following factors: a) the extent to which the person receiving alimony and the other person have held themselves out as a married couple, such as using the same last name, a common mailing address or referring to each other as husband or wife; b) the period of time that the person receiving alimony has resided with the other person in a permanent place of abode; c) the extent to which the person receiving alimony and the other person have pooled assets or income or otherwise exhibited financial independence; d) the extent to which the person receiving alimony or other person has supported the other; e) the extent to which the person receiving alimony or the other person has performed valuable services for the other; f) the extent to which the person receiving alimony or the other person has performed valuable services for the other’s company or employer; g) whether the person receiving alimony and the other person have worked together to create or enhance anything of value; h) whether the person receiving alimony and the other person have jointly contributed to the purchase of any real or personal property; i) evidence in support of a claim that the person receiving alimony and the other person have an express agreement regarding property sharing or support; j) evidence in support of a claim that the person receiving alimony and the other person have an implied agreement regarding property sharing or support; k) whether the person receiving alimony and the other person have provided support to the children of one another, regardless of any legal duty to do so.
The statute goes on to confirm that Florida does not recognize common law marriage or de facto marriage. A de facto marriage is defined as cohabitation similar to that required to establish a common law marriage in those jurisdictions recognizing common law marriage.
Re-marriage of a former spouse terminates alimony obligations. No Florida reported decision has found that cohabitation terminates alimony. Once alimony is terminated, it’s gone forever. That’s probably why courts will be very hesitant to completely terminate alimony based upon cohabitation.
It’s likely that the courts will continue to treat cohabitation as a change in circumstances. This may allow reduction in alimony. When cohabitation ends, it may allow an increase.
There is no formula to determine the amount of reduction in these cases. In one older case, a court ordered reduction in alimony equal to the amount the former wife was using to support her boyfriend. In another case predating the new statute, a court denied the petition for modification noting that the former wife’s cohabitation relationship had ended between time the petition was filed and the trial. And, at lease one court has refused to eliminate alimony based upon cohabitation, pointing out that the cohabitation might end and it wanted to protect the former wife’s interests in case she experienced a significant change in circumstances such as termination of her cohabitation. All of these cases were decided prior to the new statute.
The facts and circumstances of each case will determine the outcome. It’s important that you consult with an experienced attorney for advice in this matter. Because modification cannot be made retroactive earlier than date the petition for modification is filed, delay in filing a petition for modification may prove costly.
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William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@earthlink.net or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.
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