Should Moving in Mean Losing out? Making a Case to Clarify the Legal Effect of Cohabitation on Alimony

By May, Emily M. | Duke Law Journal, November 2012 | Go to article overview

Should Moving in Mean Losing out? Making a Case to Clarify the Legal Effect of Cohabitation on Alimony


May, Emily M., Duke Law Journal


ABSTRACT

As nonmarital cohabitation has skyrocketed over the last several decades, courts and legislatures have increasingly struggled to decide what legal effect an ex-spouse's cohabitation with a new partner should have on the receipt of alimony payments. In seeking to answer this cohabitation question, states have taken a variety of approaches. Often, however, courts' answers to the cohabitation question are not grounded in the rationale that those courts used to award alimony in the first place and may therefore lead to inconsistent or absurd results. This Note addresses the cohabitation question and argues that states should revisit their current approaches in light of the multiple contemporary theories of alimony and twenty-first century social-science research on cohabitation. Ultimately, this Note proposes several clarifications to existing law in order to provide a sensible, workable rule that would introduce consistency to courts' considerations of the cohabitation question.

INTRODUCTION

When Patricia and Andrew Craissati divorced in 2001, a Florida court ordered Andrew to pay Patricia alimony for eight years. (1) The court directed Patricia's alimony to terminate, however, if she "cohabit[ed] with another person other than the parties' child." (2) Later, Patricia was sentenced to nine years in prison for driving under the influence, causing serious bodily injury, and leaving the scene of an accident. (3) Andrew filed a petition to modify the alimony payments, alleging that Patricia was "cohabiting" in violation of the original court order because she shared her prison cell with a fellow inmate. (4)

The trial court recognized that to construe cohabitation to include a prison inmate would be "absurd" and "unthinkably bizarre." (5) Instead, the trial court found that Patricia's alimony should be reduced because she had diminished financial need while incarcerated. (6) The appellate court, however, disagreed with the lower court's reasoning. (7) It did not think that labeling Patricia as a cohabitant was "absurd" because Patricia had stipulated in an evidentiary hearing that her incarceration technically amounted to cohabitation and that she had voluntarily driven under the influence. (8) The appellate court thus reversed the trial court's decision and directed the court on remand to terminate Patricia's alimony. (9)

Although Patricia needed less alimony because she was incarcerated, she did not cohabit as the term is generally understood. (10) And although Patricia's situation is unusual, she is not alone in losing her alimony on the ground of cohabitation. As cohabitation outside of marriage becomes both more prevalent and more socially acceptable, courts increasingly confront the question of what legal effect an ex-spouse's cohabitation should have on her alimony payments. (11)

Legal scholarship, by contrast, has not addressed the question in sufficient depth. Indeed, the social landscape has changed dramatically since scholars first explored this topic in the 1970s. (12) For example, between 1970 and 2000, the number of cohabiting couples increased tenfold. (13) Although some recent work has addressed the question as it applies to a specific state, (14) academics have not thoroughly explored the issue in connection with alimony's theoretical framework and twenty-first century social-science research on cohabitation. (15) Because alimony reform remains ongoing, (16) this topic is ripe for further discussion and debate.

This Note addresses the "cohabitation question"--the issue of what legal effect an ex-spouse's cohabitation with a new partner should have on her right to receive alimony payments--and argues that states should revisit their current rules in light of both the multiple contemporary theories of alimony and the contemporary social-science research on cohabitation. Part I discusses the history of and justifications for alimony. Part II then presents social-science research on cohabitation. …

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Should Moving in Mean Losing out? Making a Case to Clarify the Legal Effect of Cohabitation on Alimony
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