Proving Cohabitation in an Alimony Termination Case - Melvin
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Proving Cohabitation in an Alimony Termination Case

by Melvin Cook

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Utah Code Section 30-3-5(10) provides that alimony terminates upon a showing by the paying party that the former spouse is cohabitating with another person.

This raises the question: what is the legal definition of “cohabitation?”

The Utah Supreme Court case of Myers v. Myers, 2011 UT 65, 266 P.3d 806 (Utah 2011) gives guidance on that question. It provides that cohabitation for purposes of terminating alimony means more than a sexual relationship between two individuals living under the same roof. Citing the case of Haddow v. Haddow, 707 P.2d 669 (Utah 1985), the Court affirmed that cohabitation requires a relationship “akin” to a marriage.

Thus, as the Court explained, cohabitation requires more than mere visitation, or residing together sporadically or for a brief sojourn. It requires a continuity of living together, or establishing a common abode that each party considers their principal domicile for more than a short period of time.

There are many factors that may be probative of whether or not a relationship bears the hallmarks of a marriage, but there is no rigid list of prerequisites. The Court noted that the Haddow decision had reasoned that the existence of a sexual relationship alone, even an extensive one, does not necessarily equate to cohabitation. Nor does the lack of mutually shared financial obligations necessarily mean there is no cohabitation, although evidence of shared household expenses and obligations is probative of the nature of the relationship.

In short, the Court declined to set forth a hard-and-fast list of prerequisites for establishing cohabitation, because “there is no single prototype of marriage that all married couples conform to.” Myers at paragraph 24. However, what the Court did do was identify the general hallmarks of a marriage (and thus cohabitation), which include “a shared residence, an intimate relationship, and a common household involving shared expenses and shared decisions.” Id.

In footnote 4 of its decision, the Court distinguished between the legal standards for establishing unsolemnized (common law) marriage as distinct from cohabitation. Common law marriage, by statute, requires a showing that a couple holds themselves out as and acquires a general and uniform reputation as husband and wife. See Utah Code section 30-1-4.5(e). Cohabitation, on the other hand, has nothing to do with the couple’s reputation or how they hold themselves out to the public.

The fact scenario in Myers is strange but illustrative of the principles delineated by the Court regarding cohabitation. Following an eighteen-year marriage, Mr. Myers was ordered by the divorce court to pay alimony to Ms. Myers in the amount of $1,200 per month. He sought to terminate his alimony obligation by proving that Ms. Myers had cohabitated in a sexual relationship with a teenaged foster child who resided at her parents’ home at the same time she lived there. But Ms. Myers slept on a couch in the basement while the foster child slept in an upstairs bedroom with other male foster children. Both were guests in the home. The trial court found that there was a common residency and a sexual relationship, that therefore there was cohabitation, and that Mr. Meyer’s alimony obligation should be terminated.

The Utah Court of Appeals overturned the trial court’s decision and reinstated Mr. Myers’ alimony obligation. It reasoned that even if the trial court’s findings of fact were correct (which it assumed to be true because great deference is always given to a trial court’s comparative advantage in making factual findings) and there had been a furtive sexual relationship between the pair, the relationship between Ms. Meyers and the teenaged foster child “bore little resemblance to a marriage.” Myers v. Myers, 2010 UT App 74 paragraph 18, 231 P.3d 815.

The Utah Supreme Court affirmed, clarifying the principles underlying cohabitation as described above. Neither reviewing court found a need to remand the case to the trial court for further findings because the proof fell well short of establishing cohabitation, or a relationship bearing the general hallmarks of a marriage.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.

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