Alimony termination dates, even for long-term marriages, were specified; and
Different classifications of alimony were formally introduced into law.
Recipients who entered into living arrangements, mirroring marriage, were faced with the loss or reduction in their alimony payments—and this change, namely cohabitation, is precisely the subject of this article.
Addressing the Question of Cohabitation
Prior to the March 2012 enactment of the Alimony law, judicial rulings did not even speak of cohabitation. However, some of the most vocal proponents for judicial change in the treatment of alimony pushed to address the question of cohabitation.
“Why,” they asked, “should anyone receive support from a former spouse if they were living with a new partner?” “Fairness,” they proclaimed, “dictated that former spouses be freed from the obligation to pay spouses who had moved on.”
These advocates for change produced story after story of injustices. They decried the assignment of cohabitants to a privileged class. Unlike remarried former spouses, they, who cohabitated, kept their support and got a new life. And indeed their voices were heard. The “new ”law addressed their grievance.
As of March 2012, the law read: “General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household… with another person for a continuous period of at least 3 months.”
And so it was proclaimed that alimony shall (not, “may be”) “suspended, reduced or terminated.” One would expect that subsequent to the law’s enactment, Separation Agreements would address cohabitation with the same kind of precision given to payment terms for a recipient spouse’s death or remarriage. Or, at least, that is what one would assume; right?
Wait and See
But that is not what happened. Instead too many Separation Agreements dodged the issue of cohabitation by inserting a “wait-and-see” kind of clause. Divorce negotiations sidestepped questions of cohabitation by simply inserting the three possible effects on support obligations resulting from living together arrangements. Thus they stated that if the alimony recipient cohabitated, as defined in the Act, alimony would be suspended, reduced, or terminated. No provisions were being included to specify which of the three choices would occur. No provisions were being included to expand on the meaning of any of the three possible implications of cohabitation.
For example, if alimony were to be reduced, would the former spouses use a particular formula for calculation of the reduction sum or would there be a specific reduction sum referenced in the Separation Agreement or would there be a scaled reduction formula subject to change over time?
And what exactly would happen if alimony were to be suspended with resumption provisions?
Would alimony be suspended in the fourth month and resume in the first month after the termination of the relationship or maybe in the fifth month or maybe at another time?
Provide for Future Clarity
The questions are almost endless. However the real point is not how many possible ideas can be generated on the various ways to address the impact of a recipient’s cohabitation on his/her receipt of alimony. The point is to question why Separation Agreements do not take a stance, do not provide for future clarity? Can it really be true that lawyers or mediators helping couples to craft a divorce settlement actually think that it is “okay” to leave a major opening for future conflict? Do they really believe that time will make it easier to address this very touchy issue of cohabitation? Cohabitation has always been a hot subject; indeed many viewed it as too hot to handle and therefore for decades favored an avoidance stance. Since 2012 cohabitation has been identified as a change factor, codified into law, and yet it is still being ignored, leaving former spouses to fight the issue on another day.
It is our contention that Separation Agreements must include precise terms for cohabitation as they do for remarriage and death.
There should be no dancing around the question, no ignoring the need for settlement, no future battles or surprises.
Agreements need to state precisely and definitely what will happen in the event of a recipient’s entrance into a cohabitation relationship—even if they amend the terms in a manner acceptable to both parties.
The term for cohabitation can be extended; the impact can be redefined, but, and the “but” is most important, there needs to be clarity on the resultant effect on payors and on recipients of alimony.