The Evolution of Cohabitation

This Week’s Blog by Jaime S. Dursht

Although the term “cohabitation” is not statutorily defined or even mentioned in the statute itself, it is a well-known concept in Connecticut Family Law referring to grounds to have alimony payments reduced, suspended or terminated following divorce.

  • Connecticut General Statutes § 46b-86(b) authorizes the court to reduce, suspend or terminate alimony payments based on proof that 1) the alimony recipient is living with another person; and that 2) the living arrangement has caused an alteration of the alimony recipient’s financial needs.
  • “Living with another person” does not necessarily mean residing together under the same roof—it can still be found where the alimony recipient and significant other have separate residences.
  • The “alteration” of financial needs must be quantified, however, the amount does not have to be significant, and according to recent case law, can also be shown by cost savings that result from the living arrangement.
  • The evidentiary burden of proof for modification is lower for cohabitation claims requiring only a “change in circumstances” rather than the “substantial change in circumstances” that is required based on other grounds for modification under General Statutes § 46b-86(a).

The Rationale Behind the Statute

The statute was enacted “to correct the injustice of making a party pay alimony when his or her ex-spouse is living with a person of the opposite sex, without marrying, to prevent the loss of support.”  (H.B. No. 6174, 1977 Sess. Statement of Purpose).  The statute was clearly meant to address the situation of alimony recipients taking steps to avoid the loss of spousal support.  Consistent with this principle, in cases where the initial component of living together is disputed, Connecticut courts will look beyond whether the alimony recipient and significant other maintain separate residences and consider facts that support whether the relationship is marriage-like.

“Living With Another Person”

In many cohabitation cases, there is a concession of living together, and the focus shifts to whether the living arrangement so affects the financial circumstances of the alimony recipient as to justify a modification of alimony.  However, in cases where living together is challenged, the fact that separate residences are maintained will not necessarily stave off a finding of cohabitation.  For example, in Boreen v. Boreen, Superior Court, Judicial District of Stamford, Docket No. FA084015215S (October 31, 2017; Shay, J.), cohabitation was found where a couple resided together under the same roof 50% of the time, ate many of their meals together and frequently traveled together even though both maintained separate housing. The court noted that “the statute does not specify that the parties must live together under the same roof twenty-four hours a day, seven days a week for the court to make a finding that they are living with another person.”  The court found cohabitation based on the couple’s long-time, committed and monogamous relationship that came with a financial benefit for the alimony recipient.

Financial Benefit

The statute requires not only a finding of living with another, but that the living arrangement alters the financial needs of the alimony recipient.  This must be shown in dollar amounts, but does not have to be significant in order to be sufficient.  For example, courts have deemed the evidence sufficient where a party was receiving $100 a week from a cohabitant, D’Ascanio v. D’Ascanio, 237 Conn. 481 (1996); where a party received $400 a month for rent from a cohabitant, Duhl v. Duhl, 7 Conn.App. 92 (1986); and where a party received $30 a week from a cohabitant who also performed handyman chores, Lupien v. Lupien, 192 Conn. 443 (1984).  Recently, the Connecticut Appellate Court reversed a trial court for not considering a party’s savings in rent that resulted from the alimony recipient moving in with her boyfriend.  Murphy v. Murphy, 181 Conn.App. 716 (2018).

Change in Circumstances

Once it is shown that an alimony recipient is living with another person within the meaning of the statute, and that there is a measurable financial benefit to the alimony recipient, the threshold change in circumstances is met and the court then engages in the analysis of consideration of the General Statutes § 46b-82 factors.  The required change in circumstances is lower pursuant to General Statutes § 46b-86(b) than the “substantial” change in circumstances required pursuant to General Statutes § 46b-86(a).

In 2013, General Statutes § 46b-86(b) was amended to include the language, “In the event that a final judgment incorporates a provision of an agreement in which the parties agree to circumstances, other than as provided in this subsection, under which alimony will be modified, including suspension, reduction, or termination of alimony, the court shall enforce the provision of such agreement and enter orders in accordance therewith.”  This means that parties may negotiate and agree to their own terms of what constitutes cohabitation and the court will enforce their agreement.  Therefore, carefully considered drafting of the Separation Agreement is critical, and knowledge of the foregoing essential if cohabitation is a future possibility for either party.

With offices in Westport and Greenwich, the attorneys at Broder & Orland LLC are extremely knowledgeable in the issues that arise following divorce such as alimony modification based on cohabitation, as well as how to avoid potential issues by careful and comprehensive drafting of Separation Agreements.