By Maureen McBrien
A marked change to the statutes that govern divorce in Massachusetts is the provision in the new Alimony Reform Act of 2011 that went into effect on March 1 of this year. The provision provides that an alimony recipient’s cohabitation with another person constitutes grounds for a termination, suspension or reduction in the payor’s alimony obligation.
What does that mean for the numerous alimony recipients who have been cohabiting for months, if not years, prior to the new law and for those who are contemplating cohabitation in the future?
This article will attempt to explain the nuances of the Alimony Reform Act of 2011 as it pertains to particular situations that involve an alimony recipient who has been cohabitating — or will be in the future.
Under the prior law, an alimony order was typically entered and continued indefinitely until — whichever occurred sooner — the death of either party, the remarriage of the recipient, or by order of the court upon a judgment following the filing of a complaint for modification alleging a material change in circumstances since the prior order issued.
What frustrated many payors was the continued obligation to pay alimony notwithstanding the recipient’s cohabitation with a romantic partner in a relationship akin to a marriage.
In some instances, recipients purposefully avoided marriage solely so they could continue receiving alimony. That prompted the movement to include a cohabitation provision in the new act to avoid such gamesmanship.
What is cohabitation?
Under the act, alimony “shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household … with another person for a continuous period of at least three months.” G.L.c. 208, §49(d).
The act enumerates several factors to determine whether a recipient spouse maintains a common household with another person. While not explicitly so stating, the enumerated factors are reflective of a romantic relationship akin to a marriage, as opposed to simply sharing a primary residence with, for example, a sibling, roommate, nanny or temporary boarders.
The act will fuel the private investigation business, as investigators search for evidence as to whether alimony recipients are in fact cohabitating as defined in the act.
Financial contribution of cohabitating partner
Although alimony is still premised on the need of the recipient and the payor’s ability to pay, the act makes no explicit reference to the financial contribution of the recipient’s cohabitating partner.
While in most circumstances a cohabitating partner’s financial contribution would reduce an alimony recipient’s need for financial support from a prior spouse, in some circumstances the cohabitating partner could be a financial drain on the alimony recipient.
But under the act, financial inquiries are irrelevant, at least at the outset, and the only emphasis is on whether a recipient is cohabitating.
The theory behind that juxtaposition is that ex-spouses should not be obligated to support prior spouses who are in a committed relationship akin to a marriage. Once such a relationship exists, it is incumbent on the couple to support themselves, independent of an ex-spouse.
The reality, however, is that such financial independence will not be achieved by some cohabitating recipients simply by virtue of their cohabitation arrangement.
Nevertheless, the alimony payor may be entitled, at the very least, to a reduction in his alimony obligation in such a circumstance. Under what circumstances does cohabitation warrant a suspension, reduction or termination in alimony?
Once it is determined that an alimony recipient does qualify as one who is cohabitating under the act, the inquiry in a complaint for modification by the payor is whether such fact entitles the payor to a suspension, reduction or termination in alimony.
That is when finances will come into consideration, since even though the act is silent in that regard with respect to cohabitating recipients, the court will obviously need to look at finances to determine whether a reduction as opposed to a termination is warranted.
If the relationship is long-lasting and the cohabitating partner is, in fact, contributing financially and has some savings and/or assets, a termination likely would be warranted.
But if the cohabitating partner is unemployed or disabled, the payor may be entitled to a reduction only.
That inquiry would seemingly expose the cohabitating partner to discovery in the context of a litigated modification action, to determine what his or her income, assets and liabilities are. This may create a double standard as the act is clear that spouses of payors are insulated from such discovery when the tables are turned and the recipient files a complaint for modification seeking an increase or continuation in alimony.
An alimony recipient must accurately disclose on his or her financial statement exactly what expenses are paid for by a cohabitating partner to the household. Such a disclosure might suffice in lieu of extensive discovery in this regard, other than perhaps sending out a few subpoenas to banking institutions to verify the representations.
When is a modification warranted on cohabitation grounds?
Family lawyers in Massachusetts are being flooded with calls from alimony payors elated at the word of alimony reform in the commonwealth. They want to know what they can do to obtain relief and when.
The answer is complex and factually driven, and for purposes of this article will only focus on the issue of cohabitation. The act provides that alimony “shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household … with another person for a continuous period of at least three months.”
The words “upon the cohabitation” suggest problems for payors in situations in which alimony recipients have already been cohabitating prior to the passage of the act, as the language is suggestive of future cohabitation.
If the recipients are already in a long-term cohabitating relationship, then what is the material and substantial change in circumstances warranting a modification of alimony, other than the passage of the act? There may be none.
With respect to relying simply on the passage of the act itself and its suggestion that alimony payors are entitled to a suspension, reduction or termination of alimony when the recipient is cohabitating, Section 4(b) of the act makes clear that Section 49, which governs cohabitation, shall not be deemed a material change of circumstances that warrants modification of the amount of existing alimony judgments.
Therefore, in instances in which a recipient was already cohabitating as of March 1, when the act went into effect, there is no change in circumstances for the alimony payor upon which to obtain relief.
The payor would need other more traditional reasons to warrant a modification, such as a reduction in income since the date the alimony issued or was last modified. And, in any event, an alimony payor’s relief may only be temporary, as the act provides for a reinstatement of alimony in instances in which the cohabitating relationship no longer exists. See G.L.c. 208, §49(d)(2). Since the act is prospective in its application per Section 4(a), the cohabitation inquiry for payors regarding their recipient ex-spouse began on March 1, 2012, and can only be satisfied if the cohabitating relationship still exists upon the expiration of 90 days, or by the end of May.
If the recipient is in a cohabitating relationship that began prior to March 1, and cohabitation is the only grounds upon which the payor seeks relief, then arguably there is no change in circumstances independent of the act (which cannot in and of itself constitute a change in circumstances of existing alimony judgments, except as to situations in which payors are paying beyond the new duration limits imposed by the act). See G.L.c. 208, §49(b).
Recipients under previously existing alimony orders who begin cohabitating for a period of 90 days or more post-March 1, however, will be subjected to a suspension, reduction or termination in their alimony obligation upon the filing of a complaint for modification by the payor, since such situation arose after the implementation of the act and thus constitutes a change in circumstances from the prior judgment independent of the passage of the act itself.
New alimony orders issued post-March 1 will be subject to modification if, as and when a recipient begins cohabitating, per the new law.
Under the act, cohabitation is clear grounds for modification of new orders and of existing orders when the cohabitation relationship began post-March 1.
In all other circumstances, the fact of cohabitation exposes the recipient to a potential reduction or termination, but it is not at all certain and is highly dependent on what other grounds for modification may exist.
Maureen McBrien practices family law at Todd & Weld in Boston and is an adjunct professor at Suffolk University Law School. She is currently co-authoring the Fourth Edition of “Massachusetts Practice, Family Law and Practice” with Charles P. Kindregan Jr. She can be contacted at firstname.lastname@example.org.
Previously published in April 30, 2012 edition of Massachusetts Lawyers Weekly. Posted with permission of the author.