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Cohabitation: Alimony in Maryland When Your Former Spouse Starts Living With Someone New

A question heard time and time again – asks why the payor of alimony should have to continue to support their former spouse when they are in a new relationship with all the benefits of marriage except the actual marriage, including cohabitating.  Often times the lack of a legally-binding marriage is the payee’s choice made strictly for purposes of continuing the receipt of alimony.  On its face, that doesn’t seem fair.

Maryland Cohabitation

Maryland Code, Family Law Section 11-108 provides that unless the parties agree otherwise, alimony terminates upon the death of either party or upon the marriage of the recipient or if the Court finds that termination is necessary to avoid a harsh or inequitable result.  Unfortunately, cases interpreting the statute have held that the fact that a recipient of alimony starts up a relationship with another similar to marriage but without actually entering into a legal marriage does not suspend or terminate the payee’s right to receive alimony.

On February 2, 2011, legislation had been introduced in the Maryland House of Delegates to codify the termination of alimony upon cohabitation of the recipient of alimony. Specifically, House Bill 304 proposed to terminate alimony if the Recipient of alimony cohabitated for a period of at least 30 days with an individual who is not a member of the Recipient’s family.  The Bill would also have created a presumption that Maryland cohabitation exists under the following circumstances:

  • 30 days of cohabitation;
  • The Recipient and the other individual are engaged in a relationship of a romantic nature;
  • The Recipient provided any economic benefit to or received any economic benefit from the other individual as a result of the relationship.

House Bill 304 would also had made it a requirement that the Recipient immediately notify the party required to pay alimony upon marriage or cohabitation.  Had this Bill been voted into law, it would have taken effect on October 1, 2011.  Ultimately, this Bill did not go anywhere in the Maryland legislature, but it is a subject with which the legislature is concerned.

Steps to Address Maryland Cohabitation

So what to do?  Appropriate language might be inserted into an Agreement, either as a Pre-Nuptial, Post-Nuptial, or Separation and Property Settlement Agreement, etc., that would terminate or suspend alimony if the recipient entered into a relationship as defined by the Agreement.  That definition would have to be case specific and could have various components.  The terms and provisions of the Agreement, including the definition of the relationship, should be geared so that the desired result may be secured.  These provisions are commonly referred to as “Cohabitation Clauses.”

The seminal Maryland case defining “cohabitation,” is Gordon v. Gordon, 342 Md. 294, 675 A.2d 540 (1996).  In Gordon, the parties entered into a separation agreement which was incorporated, but not merged, into their divorce decree.  Id. at 296.  Their Agreement provided, “Husband shall pay to Wife as alimony $6,000 per month…the said payments shall also terminate in the event the Wife resides with an unrelated man without the benefit of marriage for a period continuing for beyond sixty (60) consecutive days.”  Id. at 297.  Three years after the parties’ divorce, the husband began to suspect the wife was residing with an unrelated man in violation of their agreement and engaged the services of a private investigator.  Id. at 297-298.  After three and a half months of surveillance, the husband informed wife that he was going to cease paying alimony because she had resided with an unrelated man for in excess of 60 consecutive days.  Id. at 298.  Husband filed a motion to terminate his alimony and recover on amounts previously paid.  Id.  The matter came for hearing before a Family Division Master who found that Mr. Shankland, the wife’s boyfriend, had no other residence than the wife’s for a period of more than 60 consecutive days and recommended the Trial Court confirm termination of alimony.  Id. at 299.  The wife filed exceptions, which included asserting that the Family Division Master should not have applied the missing witness rule to infer that Mr. Shankland would have provided testimony adverse to the wife’s case.  Id.  The Trial Court entered an order terminating the husband’s alimony obligation.  Id. The wife appealed the Trial Court’s decision to terminate alimony.

The Court of Appeals found that the ordinary meaning of “cohabitation,” together with the factors developed by courts in interpreting “cohabitation,” applied to determine whether termination of alimony was warranted.  Id. at 304.  The Court of Appeals opined, “the term ‘cohabitation’ implies more than merely a common residence or a sexual relationship…[it] connotes mutual assumption of the duties and obligations associated with marriage.”  Id. at 308.  Further, the Court set forth a non-exhaustive list of factors to be considered in determining whether cohabitation existed, including,

  • establishment of a common residence,
  • a long-term intimate or romantic involvement,
  • shared assets or common bank accounts,
  • joint contribution to household expenses, and
  • recognition of the relationship by the community.  Id. at 308-309.

Finally, the Court of Appeals mandated that “if the parties to a separation agreement use the term ‘cohabitation’ or an analogous term, we shall interpret its meaning according to the definition outlined [in this opinion] absent evidence of an intent to use a different meaning.”  Id. at 310.

Therefore, it is essential that a potential payor of alimony secure an Agreement that protects against a cohabitation type scenario and provides for termination or modification of alimony should one arise as defined by the Agreement.

So you have an Agreement, and the Ex starts to cohabitate, what next?  Hire a private investigator on your own?  Do your own detective work?  Probably not the best choices.  The potential payor should consult with counsel to analyze the evidence available and, more importantly, what other evidence might be acquired before instituting an action to ensure that the desired result under the Agreement might be obtained.  Through counsel a strategy may be implemented to pursue the evidence necessary for a successful and just resolution.

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