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Paying or Receiving Alimony? It May Help to Understand 'Cohabitation'

Ryan A Tombul, Esq. and David W. Noblit, Esq. \ 10-03-17

+ Dollar broken heart

If you are a divorcee who is either paying or receiving alimony, there are numerous events that can trigger the suspension or termination of those alimony payments. One of those events is when the spouse receiving alimony begins cohabitating. Under Tennessee Code Annotated § 36-5-121(f)(2), if a party receiving alimony is shown to be living with a third person, a rebuttable presumption arises that the alimony recipient no longer needs the amount of alimony support they were previously awarded, and all or part of that alimony award should be suspended.

At first glance, the idea of “cohabitation” may appear to be a simple concept. However, time and time again, ex-spouses are confused about what cohabitation really means in the eyes of the law. If one is not accurately informed, this confusion regarding “cohabitation” can be frustrating and cost you both emotionally and financially. So, it is important to be aware of the complexities of cohabitation and include some guidelines to it in a marital dissolution agreement (“MDA”) if one becomes necessary during a divorce.

Tennessee courts have defined “cohabitation” within the context of family law in numerous ways, but all of those definitions essentially embody the same themes. Those themes generally are that the ex-spouse and other cohabitor are living together as husband and wife, embodying the mutual assumption of those marital rights, duties and obligations usually manifested by married people, including but not necessarily dependent on sexual relations. See Treadway v. Treadway, 2015 Tenn. App. LEXIS 145, *14-16.

Ex-spouses often think that if their ex is consistently dating someone, and partaking in activities that can sometimes go along with consistent dating, then that ex is guilty of cohabitating. However, these activities do not always equate to “the duties and obligations usually manifested by married people” such that it gives rise to cohabitation.

“The term cohabitation… requires more than an intimate or sexual relationship and more than spending the night on several occasions with another... The term cohabitation… additionally requires something akin to the mutual assumption of duties and obligations that are customarily manifested by a married couple or life partners.” Id.

As shown above, it takes a great deal of evidence to prove that two people are cohabitating, and a court will consider numerous factors before coming to a decision. Providing such evidence can be very difficult. A mere showing that an ex-spouse is going on dates, possibly paying for small things, and sleeping at another’s house, especially sporadically, will most likely not be enough to persuade a judge. If you think that you may have a cohabitation case, want to craft a marital dissolution agreement that you understand and that will not come back to haunt you, or simply have questions about cohabitation in general, please contact Leitner, Williams, Dooley & Napolitan today, as our experienced attorneys are ready to provide sound and efficient advice regarding all your family law needs.