Depending on the ruling of the court, an alimony order can be for a set number of years or even life. In order to modify spousal support, whether that be alimony or post-separation support, significant changes are normally necessary. The termination of an alimony order is automatic upon the death of either party, remarriage of the dependent spouse, or cohabitation by the dependent spouse. That being said, what determines cohabitation in North Carolina?
According to North Carolina state law, cohabitation requires:
It is important to take notice that, although the court requires two people to essentially be living together in order to terminate an alimony order, that does not mean that they must be retaining the same residence. The dependent spouse and third party may each retain a separate residence and still be considered living together.
The second criteria the court will look to is whether the dependent and third party act like a married couple. There are numerous facts considered by the North Carolina courts. There is no one item that is required or determinative.
Some factors considered in determining cohabitation:
Although cohabitation is defined by statute, it is often a source of litigation in court. Seeing as the dependent receiving alimony has an incentive to alter behavior to avoid losing their monthly check, these types of cases may get a bit grey at times. This may include keeping a separate residence, limiting the nights spent together per week, not keeping their belongings at the other party’s place, not getting engaged, etc. This behavior can make it quite frustrating for the person ordered to pay. Often, testimony from a private investigator, phone records, and bank records help to establish cohabitation.
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.
Remarriage of a dependent spouse will terminate court-ordered alimony under North Carolina law. This applies to divorces both before and after October, 1995. However, remarriage only terminates future alimony payments. It does not excuse any overdue payments from before the remarriage. If support payments are subject to a separation agreement between the parties that has not been made part of a court order, then the terms of the agreement apply. Such an agreement may or may not include a clause that terminates support upon remarriage. If the agreement is incorporated into a court order, then it is modifiable by the court and the support obligation may be terminated on remarriage.
In North Carolina, for actions filed after October, 1995, post-separation support and alimony will also usually terminate when a dependent spouse “engages in cohabitation.” Alimony terminates when cohabitation has an economic impact on the dependent spouse. Public policy dictates that a supported spouse should not be able to avoid in bad faith the termination of alimony that would result from remarriage while engaging in a relationship that has most of the characteristics of remarriage.
“Cohabitation” means 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 decision found that “cohabitation” existed when a couple had been in a monogamous relationship for ten months and slept over up to five times per week. However, a court might also (in a rare case) find cohabitation to exist when the parties did not ever spend the night together. Factors such as whether the parties maintain separate residences, and where they keep personal belongings, are factors courts can consider. The more “rights, duties, and obligations” associated with cohabitation, the more likely it is to have an economic impact on the dependent former spouse, and the more it will appear that the dependent former spouse is avoiding the formalities of marriage primarily in order to continue receiving alimony.
Factors include how the members of the couple share household chores and child care duties, whether they have co-mingled their finances, how they hold themselves out to society, whether they go out in public together and attend worship services together, whether they vacation and spend holidays together, and even whether they kiss when leaving for work in the morning. However, activities such as walking the dependent party’s dog, parking in that party’s garage, moving furniture into the party’s home, carrying in groceries, spending 11 consecutive nights together, etc. were help not to support a finding of cohabitation.
Whether a relationship is exclusive and monogamous is an especially important factor in determining whether cohabitation exists. Actual sexual intercourse between the dependent spouse and the new partner is not required in order for there to be cohabitation that will terminate alimony. Living with roommates or family members is not considered “cohabitation,” although this can reduce a party’s expenses and have an impact on the amount of support, as discussed above. One difficulty is that cohabitation, unlike remarriage, may not have a definite start date. At the latest, courts will date the cohabitation to the date that one party brings a motion to terminate support based on it.
If you need to speak with a family law attorney concerning alimony and/or termination of alimony, contact Adkins Law. Adkins Law is located in Huntersville and primarily serves the Lake Norman area and Mecklenburg County.