Codifying cohabitation as a ground for modification or termination of alimony - so what's new?

• Author: Gladstone, Peter L.
• Position: Florida

Cohabitation has long been recognized as a basis for seeking the modification and/or termination of an alimony obligation. Until recently, such applications were governed strictly by case law and decided on a case-by-case basis. In the exercise of their discretion, the courts had only precedent as their guide. However, on June 10, 2005, a new post-divorce codification of the long-standing common law was enacted. F.S. [section] 61.14 was revised to include a new subsection (b), authorizing a court to reduce or terminate alimony upon finding that "a supportive relationship has existed between the obligee and a person with whom the obligee resides." The new statute embodies much of what the case law already provides. It also leaves many questions unanswered. In reality, not a whole lot has changed.

The Requirements

It is well established in Damiano v. Damiano, 855 So. 2d 708,710 (Fla. 4th DCA 2003), that "[t]hree prerequisites are required for a modification of alimony: 1) a substantial change in circumstances; 2) that was not contemplated at the time of final judgment of dissolution; and 3) is sufficient, material, involuntary and permanent in nature." In Bridges v. Bridges, 842 So. 2d 983, 984 (Fla. 1st DCA 2003), (1) "Ii]or cohabitation to be sufficient to warrant a finding of changed circumstances, the court must consider whether either of two factors is present: whether the cohabitant provides support to the recipient spouse, or whether the recipient spouse contributes to the support of the cohabitant." The statutory requirements are similar, albeit with new catch phrases sprinkled about. F.S. [section] 61.14(b)(1) stipulates that there must be "specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides." In determining whether an award of alimony should be reduced or terminated because of such a relationship, "the court shall elicit the nature and extent of the relationship in question." F.S. [section] 61.14(b)(2).

The Burden of Proof

Cheney v. Cheney, 741 So. 2d 565, 566 (Fla. 4th DCA 1999), provides that the burden of proof is on the obligor "to show that the cohabitant provides support to the former spouse or the former spouse contributes to the other's support." The statute also places the burden squarely upon the obligor "to prove by a preponderance of the evidence that a supportive relationship exists." (2)

The Circumstances

A review of the pre-codification case law reveals a myriad of circumstances to be considered by the court in making its determination including, but not limited to: the extent to which the new living situation has impacted the financial condition of the alimony recipient and the continued need for alimony, Reno v. Reno, 884 So. 2d 461 (Fla. 4th DCA 2004); Dibartolomeo v. Dibartolomeo, 679 So. 2d 72 (Fla. 4th DCA 1996); the extent to which the contribution of a cohabitant reduces the expense of the recipient spouse and lessens the need for alimony, Donoff v. Donoff, 777 So. 2d 1078 (Fla. 4th DCA 2001); Cheney v. Cheney, 741 So. 2d 565 (Fla. 4th DCA 1999); Springstead v. Springstead, 717 So. 2d 203 (Fla. 5th DCA 1998); the extent to which the recipient spouse is supporting the cohabitant, Schneider v. Schneider, 467 So. 2d 465 (Fla. 5th DCA 1985); the extent of the relationship between the cohabiting parties, Bentzoni v. Bentzoni, 442 So. 2d 235 (Fla. 5th DCA 1983); the permanent nature of the economic change, Long v. Long, 622 So. 2d 622 (Fla. 2d DCA 1993); the continuation of...