Decreased marriage rates, rising divorce rates, and a growing incidence of unmarried cohabitation have combined to create and increasingly common situation: unmarried cohabitation between a dependent spouse and a third party. The question is, what effect should this cohabitation have on a supporting spouse’s continued duty to pay alimony to the dependent spouse? This article explores the legislation that is used in North Carolina and conditions that modify and terminate alimony payments.
Modified Legislation in North Carolina
For the past thirty years, North Carolina’s alimony has been “fault based”. A dependent spouse was entitled to receive alimony only if the spouse was able to provide substantial evidence to show that the supporting spouse had committed one of several “matrimonial offenses”. As of October 1, 1995, a dependent spouse’s obligation to prove “marital fault” as a condition of alimony has been eliminated. The rationale for financially punishing the spouse that caused the destruction of the marriage has lost its credibility. Thus the change was made toward a balancing of economics and less of a focus on fault finding.
Each state proposes a different legislative solution to termination or modification of alimony payments. In North Carolina, remarriage of a dependent spouse will terminate court-ordered alimony. This statue applies to divorces both prior to and after October, 1995. However, it is important to acknowledge that remarriage only terminates future alimony payments, it does not excuse any overdue payments from before the remarriage. In the event that support payments are subject to a separation agreement between parties that is not stated in a court order, then the terms of the agreement apply. An agreement of this nature, may or may not include a clause that terminates support upon remarriage. If the agreements is stated in a court order, then it is modifiable by the court and the support obligation may be terminated on remarriage.
According to the October statue, when a dependent spouse engages in cohabitation, post-separation support and alimony will usually be terminated. More specifically, alimony terminates when cohabitation has an economic impact on the dependent spouse.
The legal definition of cohabitation is, the “continuous and habitual living together with evidence of the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people”. A North Carolina court of appeals found that cohabitation existed when a couple had been in a monogamous relationship for ten months and slept in the same dwelling for up to five times per week. In a rare case the court found that cohabitation existed when the parties maintained separate dwellings (did not spend nights together) but kept personal belongings at their significant other’s home. The more rights, duties, and obligations associated with cohabitation, the more likely it is to have an economic impact on the dependent former spouse. It is also more likely that it will appear that the dependent former spouse is acting in bad faith by avoiding the formalities of marriage primarily to continue receiving alimony.
There are several factors to consider when determining if a couple is cohabitating or not. Some of these factors include:
Much like there are factors to support cohabitation, there are factors that are not enough to support a finding of cohabitation. Such factors include:
Situational Factors of Cohabitation
There are situational factors to consider when determining whether or not a couple is engaging in cohabitation. The first of these is monogamy. Sexual intercourse between the dependent spouse and the new partner is not required for there to be a cohabitation that will terminate alimony. Secondly, it is important to examine the relationship between the dependent spouse and the person that they are living with. For example, although living with roommates and family members can reduce the dependent party’s expenses it is not considered cohabitation. However, living with a roommate or a family member can have an impact on the amount of the support. Finally, is unlike marriage cohabitation does not have a definite start date. Lately, courts have dated the cohabitation to the date that one party brings a motion to terminate support.