Cohabitation and Alimony: What is Cohabitation? (Part 1 of 2)

If you are going through a separation and divorce in North Carolina, one topic that always arises is the dreaded “A” word: Alimony. No one wants to be responsible for supporting their soon to be ex-spouse, and if they are going to be responsible for that support, they want to know what can make the obligation (a.k.a. nightmare) end.

In North Carolina, several circumstances will terminate the alimony payments: the death of the supporting spouse, the death of the dependent spouse, or the remarriage or cohabitation of the dependent spouse. The death of either party or the remarriage of the dependent spouse are pretty clear in their definitions, but there is some confusion about what exactly is considered cohabitation. Although statute defines cohabitation, the facts and circumstances of each case determine whether cohabitation has truly occurred.

A discussion of the elements of cohabitation follows, but at the outset, it is important to understand the reasoning of why cohabitation terminates Alimony. It may seem that it is to punish the dependent spouse or to keep the dependent spouse from having a dating life after their marriage ends, but this is not the case. The North Carolina Court of Appeals in Setzler v. Setzler, 781 SE2d 64 (NC App., 2015) explained that terminating alimony due to cohabitation is not punishment of the dependent spouse, but rather is a financial consideration. The Court reasoned that if the dependent spouse has entered into a serious relationship that implicates their finances, they could be avoiding marriage in bad faith to keep the alimony coming. With that in mind, let us turn to the elements of cohabitation.

First and foremost, cohabitation means that the dependent spouse and the new significant other are in a “private” or monogamous relationship. If there is an indication that the relationship is not exclusive on either side, then any argument of cohabitation immediately goes out the window.

Second, the dependent spouse and significant other must be dwelling together “continuously and habitually.” This means more than occasionally spending the night together, but that they are living together under the same roof and have begun to merge their households. An indication of this would be where the dependent spouse and new love interest both signed the lease, or both their names are on the utility bills. There have been several North Carolina Court of Appeals cases where the Court found no cohabitation occurred since the new beau had a separate residence that they used as a base of operations.

Lastly, there must be a mutual voluntary assumption of marital rights, duties, and obligations. This means that the dependent spouse and the new beau are doing things that married couples normally do. Some previous North Carolina cases have given examples of mowing the yard, taking the other party’s car for an oil change, letting repairers into the home during work hours, and taking family vacations with the children as examples of marital duties.

As a parting point, it is important to note that sex alone is not enough to prove cohabitation. What the court is looking for is evidence that the dependent spouse is in a relationship that is serious and committed enough to rise to the level of marriage, but the dependent spouse is avoiding remarrying to keep the alimony check coming in. In the second part of this series, we will examine how to prove cohabitation to the court.

Part 1 | Part 2

by Jennifer A. Crissman, Woodruff Family Law Group