Modifying or Terminating Maintenance Based on Cohabitation
| Publication year | 2009 |
| Pages | 45 |
2009, June, Pg. 45. Modifying or Terminating Maintenance Based on Cohabitation
June 2009
Vol. 38, No. 6 [Page 45]
Family Law articles are sponsored by the CBA Family Law Section to provide information to family law practitioners. Articles are intended to focus on practice tips and discussions of current issues within the realm of family law.
Coordinating Editors
Trish Cooper, Denver, of the Law Office of Stephen J. Harhai--(303) 329-8300, tcooper@harhai.com; Meredith Patrick Cord, Colorado Springs, of Johnson & Cord, PC--(719) 471-4034, mpc@johnsoncord.com
About the Authors
Cynthia L. Ciancio is a shareholder of Donelson Ciancio & Goodwin, P.C., where she specializes in the area of family law. She is a past President of the Adams/Broomfield Bar Association and is on the Executive Council of the CBA Family Law Section--(303) 450-1665, cyndyciancio@colo-law.com. Jamie L. Rutten is an associate with Donelson Ciancio & Goodwin, P.C., where she practices in the area of family law. She is a former research editor of the North Dakota Law Review--(303) 450-1665, jamierutten@colo-law.com.
This article addresses the modification or termination of maintenance in situations where the payee ex-spouse has entered into an unmarried cohabitating relationship with a new partner. To modify or terminate maintenance in Colorado, there must be proof of substantial and continuing changed circumstances. This article explores how cohabitation affects the modification or termination standard.
The number of cohabitating partners in the United States has been steadily increasing.(fn1) In 1996, unmarried couple households represented 2.9 percent of all households.(fn2) By 2003, the figure had increased to 4.2 percent, bringing the total number of unmarried partner households in America to 4.6 million.(fn3) Many times, persons who are divorced will enter into unmarried cohabitating relationships with their new partners.(fn4) When one of the cohabitating partners is a recipient of spousal support, legal issues can arise.
Suppose an ex-husband is required to pay his ex-wife spousal support for ten years, pursuant to the couple's separation agreement. Two years after entering into the agreement, ex-wife begins cohabitating with her new boyfriend in his home. She quits her job and does not appear to have plans to re-enter the workforce. Ex-husband believes ex-wife is being fully supported by her boyfriend and does not want to continue providing support payments, because he believes the payments also benefit her boyfriend. Furthermore, ex-husband believes ex-wife is not attempting to rehabilitate herself so as to eventually become self-supportive. Under Colorado law, ex-husband's options are twofold: (1) he can argue that ex-wife's cohabitating relationship amounts to a common law marriage, thereby terminating his support obligation; or (2) he can argue that ex-wife's living arrangement creates a change in circumstances so substantial that termination of maintenance is warranted.(fn5)
This article explores Colorado law as it relates to the termination or modification of maintenance when an ex-spouse receiving maintenance begins cohabitating with a new partner. In addition, it analyzes the various approaches taken in other jurisdictions. Finally, it provides suggestions for practitioners concerning the modification of maintenance when cohabitation is involved.
As noted above, Colorado law provides that the payor ex-spouse can terminate maintenance if he or she can prove that the payee ex-spouse's cohabitation arrangement falls under Colorado's legal definition of a common law marriage.(fn6) If the payor ex-spouse cannot prove the relationship legally constitutes a common law marriage, he or she can seek to modify or terminate maintenance pursuant to CRS § 14-10-122(1)(a),(fn7) which states, in pertinent part, that maintenance may be modified on a showing of changed circumstances so substantial and continuing as to make the terms unfair.(fn8)
Colorado case law dealing with the effects of cohabitation on maintenance is relatively limited. In fact, only two Colorado appellate cases address cohabitation and the modification or termination of maintenance outside the context of common law marriage.(fn9) These cases are discussed below.
In In re the Marriage of Dwyer,(fn10) ex-husband argued that his maintenance obligation should be terminated because ex-wife was cohabitating with an adult male. The Colorado Court of Appeals held that mere cohabitation without the other prerequisites establishing a common law marriage is "not tantamount to `remarriage' for purposes of § 14-10-122(2)."(fn11) The court found that mere cohabitation was not sufficient to terminate ex-husband's maintenance obligation, and further stated that cohabitation that diminishes or eliminates a party's need for support could warrant a modification or termination of maintenance.(fn12) Thus, the proper inquiry under Colorado law for determining whether maintenance should be modified or terminated in light of cohabitation is whether the payee ex-spouse's need for support has changed or been eliminated as a result of the cohabitation.(fn13)
The Dwyer court found that ex-wife needed continuing maintenance even after entering into the cohabitation arrangement.(fn14) The trial court found that ex-wife's earning capacity was insufficient to provide for her reasonable needs.(fn15) Specifically, the trial court found that ex-wife was unable to obtain employment as a teacher because of cutbacks in public school budgets, a surplus of teachers, and her age.(fn16) Additionally, the trial court recognized that she completed cosmetology training, but further found that her present and future earnings were minimal.(fn17)
Further, the court found that ex-wife's cohabitant did not contribute to her support.(fn18) In making that finding, the court of appeals considered the fact that ex-wife had entered into an agreement with her cohabitant that provided they would not be legally responsible for each other's support and that their separate assets and liabilities would remain separate.(fn19) Ex-wife also testified that she paid $200 in monthly rent; that she and her cohabitant contributed jointly to other household expenses; and that the cohabitation arrangement resulted in only a modest reduction of her monthly housing and food expenses.(fn20)
In In re the Marriage of Molloy,(fn21) the parties' separation agreement incorporated into their decree of dissolution permitted the termination of maintenance payments on death, remarriage, or cohabitation.(fn22) Ex-husband argued that maintenance should have terminated when ex-wife purchased a house in co-tenancy with another man.(fn23) Ex-wife and her co-tenant lived on separate floors of the house and did not have a sexual relationship.(fn24)
The court of appeals discussed the meaning of the word "cohabit" in the context of a request to terminate maintenance based on cohabitation.(fn25) The court reviewed the law regarding cohabitation and maintenance in other jurisdictions and concluded that a cohabitation relationship sufficient to terminate or modify a maintenance payment must be more than two people simply living together under the same roof.(fn26) Specifically, the court noted that there was no evidence of a "sexual relationship, romantic involvement, or even a homemaker-companion relationship" between ex-wife and her cohabitant; thus, there was no evidence that ex-wife was cohabitating with a third-party male as contemplated by the separation agreement.(fn27)
As noted above, Dwyer and Molloy are the only Colorado appellate cases that deal with the issue of maintenance where the cohabitating couple's relationship does not legally constitute a common law marriage. Courts in other jurisdictions have more extensively addressed the issue. Therefore, an overview of the law in other jurisdictions may be of use to the Colorado practitioner when confronted with a cohabitation matter.
Unlike Colorado, some state statutes specifically address cohabitation in the context of the termination or modification of maintenance.(fn28) In other states, courts strictly adhere to the language of the separation agreement and decide the case under principles of contract law.(fn29) The jurisdictions that terminate spousal support on a showing of cohabitation represent the minority position.(fn30) Most states considering the request to modify or terminate look to whether there has been a significant change in the payee ex-spouse's financial circumstances as a result of the cohabitation.(fn31) Thus far, Colorado follows the majority view.(fn33)
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