What do states consider ‘cohabitation’ to be in the context of alimony modifications following a divorce? Cohabitation is defined as the act of living together as if or as a married couple. States have adopted a number of different interpretations to the meaning of cohabitation from statutory construction to case law application with some consistency in application.
In Garlinger v. Garlinger, 137 N.J. Super. 56, 347 A.2d 799 (App. Div. 1975), the court determined that alimony payments made from the payor to the payee were to be suspended as the payee was cohabitating with another for two months. The court held where a former wife chooses to cohabit with a paramour, the issue will arise if she has further need for the payor’s alimony. It was determined the inquiry of cohabitation is whether the former wife’s illicit relationship with another man has produced a change of circumstances sufficient to entitle the former husband to relief.
Oklahoma elected to use the Garlinger inquiry in deciding its alimony modification cases, and its’ statute states the term cohabitation means the dwelling together continuously and habitually of a man or woman who are in a private conjugal relationship not solemnized as a marriage according to law, or not necessarily meeting all the standards of a common law marriage. 43 OK Stat § 134 (2023).
In New York, cohabitation occurs when the recipient spouse habitually lives with a romantic partner and the two acts as husband and wife. N.Y. Dom. Rel. §238 (2020). Unlike Oklahoma, New York does require that the payee and their spouse act as husband as wife, not just meeting some of the standards of a marriage.
In Alabama, alimony may be terminated upon proof the spouse receiving the payments is living openly or cohabitating with a member of the opposite sex. AL Code § 30-2-55 (2023). The law in Alabama is especially concerned with how ‘open’ the relationship is to the community surrounding the couple.
In Georgia, cohabitation means dwelling together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person. O.C.G.A. § 19-6-19(b). The law further explains that the term meretricious refers to relationships where parties live together as if they were married and considers factors such as sharing living expenses and carrying on an intimate relationship. The court here is concerned with the level of openness of the relationship.
In Illinois, the law regarding alimony payments dictates that payments may be terminated when the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis. 750 ILCS 5/510(c). Similarly to the laws in Alabama and Georgia, the courts will consider the factor of a consistent conjugal relationship in assessing whether cohabitation exists.
Massachusetts differs by giving a specified period for cohabitation. G.L.c., Ch. 208, s 49(d). The Massachusetts Alimony Reform Act, which was introduced in 2011, defines cohabitation by maintaining a common household with another person for a continuous person of at least three months. The law defines several factors for a common household: oral/written statements made to third parties regarding the relationship, economic interdependence of the couple, person is engaging in conduct and collaborative roles in furtherance of their life together, the community reputation of the persons as a couple, etc.
Florida’s definition of cohabitation is like the Massachusetts approach. Florida finds cohabitation to be a supportive relationship that exists between the oblige and a person with whom the oblige resides. Fla. Stat. Sec. 61.14(1)(b). Florida then lists factors of what contributes to a supportive relationship such as the period of time the oblige has resided with the other person in a place of permanent abode, the extent to which the oblige and other person have pooled their assets, whether the oblige and the other person have jointly contributed to the purchase of any real or personal property. Fla. Stat. Sec. 61.14(2).
Maryland follows both the Florida and Massachusetts’ use of factors to help the court determine when there is cohabitation. Maryland Code, Family Law §11-108. Alimony may be terminated if cohabitation for a period of at least 30 days with an individual who is not a member of the recipient’s family.
In Tennessee, alimony payments may be terminated or modified if the recipient begins living with a third party. Tenn. Code. § 36-5-121(2023). In all cases where a person is receiving alimony and the recipient lives with a third party, there is a rebuttable presumption that 1) the third party is contribution to the support of the alimony recipient and the alimony recipient does not need the amount of support previously awarded and thus, the court should suspend all or part of the alimony obligation; or 2) the third party is receipt support from the alimony recipient and the alimony recipient does not need the amount of alimony previously awarded and thus, the court should suspend all or part of the alimony obligation.
Many states have developed their own definitions of cohabitation independent from what other states may use. However, there remains significant overlap between the states as the language presents minor differences, but the rule itself -- parties holding themselves out as couple for a period of time -- is the same at its core.
