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Cohabitation terminates alimony in NC

2/20/2016

14 Comments

 
termination of alimony in nc
​Alimony can be for a fixed number of years or even life depending on the ruling of the Court. Modification of spousal support (alimony or post-separation support) generally requires a substantial change of circumstances since the last Order. Termination of an alimony Order is automatic upon the death or either party, remarriage or the dependent spouse, or cohabitation by the dependent spouse. It is important to note a separation agreement or private contract for alimony does not have to require cohabitation be a terminating event. That being said, what constitutes cohabitation under North Carolina law?

​Under NCGS 50-16.9(b) cohabitation requires

  1. Two adults dwelling together continuously and habitually.
  2. The voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people.
The first prong of the test requires two people to essentially be living together. There is no magic number of overnights per week that automatically equals continuously and habitually. The dependent spouse and third party (the “parties”) also may each retain a separate residence and still be considered dwelling together.

The second prong of the test looks to see if the parties act like a married couple. Below is a sampling of items considered by NC Courts. It is important to note in a totality of circumstances test that no one item is required or determinative.

Some factors considered in evaluating cohabitation

  1. ​Do the parties have a long term monogamous sexual relationship
  2. Do the parties kiss or hold hands in public
  3. Do the parties tell others they are a couple or engaged
  4. Do the parties go on vacation together
  5. Do the parties share joint financial accounts
  6. Do the parties exchange gifts
  7. Do the parties have a key to the residence of the other
  8. Do the parties keep personal items or clothes at the residence of the other
  9. Do the parties go shopping together
  10. Do the parties clean the residence of the other
  11. Do the parties make improvements or repairs to the residence of the other
  12. Do the parties keep a toothbrush at the residence of the other
  13. Do the parties keep medicine at the residence of the other
  14. Do the parties prepare meals together
  15. Do the parties attend church together
  16. Do the parties go out to eat together
  17. Do the parties shower or bathe at the residence of the other
  18. Do the parties visit the other at their place of employment
​Despite being defined by statute cohabitation is often a source of litigation in Court. The dependent spouse receiving alimony has an incentive to alter behavior to avoid losing their monthly check. This may include keeping a separate residence, spending at least a few nights each week apart, not keeping clothes at the residence of the other, not getting engaged etc. This behavior can be quite frustrating for the person ordered to pay. The statute could have required remarriage to terminate, but cohabitation was added to not reward the bad faith of “live in” lovers.

North Carolina case law can go either way on similar facts. One case where the Court found cohabitation and terminated alimony was Rehm vs. Rehm, 104 N.C.App. 490, 409 S.E.2d 723 (N.C. App., 1991). In Rehm, the North Carolina Appellate Court upheld the trial court's finding of cohabitation terminating the husband's obligation to pay alimony after finding: (1) the wife maintained an exclusive relationship with a third party for approximately eleven months; (2) the third party stayed overnight at the wife's residence as many as five times per week; (3) the third party brought clothes to the wife's residence; (4) the wife and third party took trips together; (5) the third party kissed the wife good-bye in the mornings; and (6) the wife and third party engaged in monogamous sexual activity. It is important to note the Court also found that the wife and third party maintained separate residences.

The 2013 decision in Smallwood vs. Smallwood, 742 S.E.2d 814 (N.C. App., 2013) has many facts that at first glance would seem to scream cohabitation. That being said the Court upheld the decision finding the parties were not engaged in cohabitation.

Some facts in Smallwood that supported cohabitation:

  1. Parties in exclusive long term sexual relationship.
  2. Parties spent 5-7 nights per week  together.
  3. Parties go out to eat together.
  4. Parties attend church together.
  5. Parties kiss goodbye.

Some facts in Smallwood that did not support cohabitation:

  1. Parties had separate homes
  2. Parties did not keep clothes at residence of the other
  3. Parties not engaged
  4. Parties did not exchange gifts
  5. Parties had only been on one trip together

In reviewing NC case law it is important to remember that when the Court is reviewing the decision of the lower court the Court does not review the case de novo or from scratch. Instead the Court is looking to see if there was competent evidence to support the ruling of the lower Court. This makes overturning any decision of the lower court rather unlikely. In examining any case it is important to consider the totality of the circumstances shown by the admissible evidence. Parties lie in Court and proving cohabitation can be elusive without testimony from a private investigator. Another source of information can be phone and bank records.
14 Comments
Andrew
12/2/2017 09:22:21 am

How do I get said alimony removed since my ex has cohabitatied since 2014 and remarried since 2016 without a lawyer in NC? I understand this states it’s automatic but how does this work. I can’t afford an attorney. Any help would be greatly appreciated

Reply
Jason Witt
12/2/2017 10:50:08 am

Cohabitation is not always black and white, but remarriage certainly is. Have you still been paying since her remarriage? Does the other party not acknowledge that alimony should terminate? Is the alimony pursuant to a Court Order or Separation Agreement? Does the Court Order explicitly state that alimony automatically terminates upon remarriage? Something is not right here....

Reply
Cohabitation and non-biological children
12/25/2017 12:10:10 pm

In the list of "Some factors considered in evaluating cohabitation," my (college aged) adopted son lives with me and not my spouse. Under the list, conditions #1-3 are not met, but #4-18 are met.

Reply
Jason Witt
12/25/2017 04:57:45 pm

Are you asking if your adopted son would terminate your alimony? Cohabitation in this scenario applies to people you are in a romantic relationship with- not family members and roommates.

Reply
Johns
10/31/2018 01:16:31 pm

My separation agreement does not have any cohabitation clauses. However, my ex is engaged and has been cohabiting with with the fiance for about a year now. The fiance and her share a home and life together. Joint bills, trips, and even has my children's medical bills in his name. The ex is adamant I have to continue to pay since our agreement does not explicitly state this. How would the courts see this?

Reply
Jason Witt
10/31/2018 04:13:48 pm

For specific legal advice regarding your separation agreement you would need to have a local attorney review the document. The following case can serve as a starting point for research:

https://caselaw.findlaw.com/nc-court-of-appeals/1231214.html

Reply
Talisa
10/15/2019 02:00:14 pm

Could it be considered cohabitation if the third party is married and maintains a separate residence with his wife? He lives out of state so often spends weeks with me at a time. His wife is critically ill so he will not divorce.

Reply
Jason Witt
10/15/2019 03:11:11 pm

Not sure if the fact he is married makes a difference or not, but shacking up for weeks at a time certainly has the look of cohabitation. Ultimately would be a question to decide in court.

Reply
David
10/30/2019 08:27:35 pm

My estranged wife has been actively living with another man for nearly a year. I have been, and currently still am, paying monthly alimony as part of a mutual separation agreement. I just found out her cohabitation essentially nullified my requirement to pay alimony. I am clear on the cohabitation definitions--what I am wondering is...if she moves out specifically to keep alimony coming, do I have to pay once she moves out?

Reply
Jason Witt
10/30/2019 09:06:27 pm

You would need a local attorney to review your agreement for specific legal advice. Also make sure cohabitation is a terminating event per your agreement as it is not the same as a court order.

Reply
Paul Adkins
7/31/2020 05:35:43 pm

In my ex-wife buys a house together with her sister and mother and all live together is this considered cohabitation. Fact is I was ordered to pay her because of a certain “life style” she had to keep up. Now that there are 3 people living together and sharing bills it should either eliminate my payment altogether or greatly reduce it? Thoughts?

Reply
Jason D Witt
8/1/2020 09:39:06 am

Cohabitation for alimony purposes generally refers to someone you are in a romantic relationship with. Now if her expenses have decreased due to roommates that could be the basis for a motion to reduce alimony, but you would need to speak with a local attorney to explore your chances of success.

Reply
Jonathan
8/29/2022 02:10:27 pm

My separation agreement states that only by death of either party, 60 months, or if both parties mutually agree, will alimony be terminated. This being the case, my ex purchased a house with her fiance a year ago and they have been living together ever since, Options?

Reply
Jason Witt
8/29/2022 04:01:31 pm

For specific legal advice you would need a consultation with a local attorney to review the agreement.

Reply

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