Under NCGS 50-16.9(b) cohabitation requires
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
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:
Some facts in Smallwood that did not support cohabitation:
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.