Florida's "cohabitation" statute: the revolution that wasn't.

• Author: Bendeck, Odette Marie

The enactment in 2005 of the supportive relationship grounds for modification of alimony, as set forth in F.S. [section] 61.14(1)(b), generated more interest by the general public than any other recent legislation in the family law arena. Long before the bill became law, divorced spouses were seeking legal opinions on how the law might impact support obligations under existing final judgments and settlement agreements. The new provision was greeted simultaneously with cheers from the perspective of those paying alimony and jeers from those fearing unjust and draconian treatment of unsuspecting alimony recipients who were "just dating."

Although the pertinent statutory lingo in question deals with the existence and consequence of a "supportive relationship," the provision is generally referred to as the cohabitation statute. Reference to cohabitation, however, is not only a misnomer, but significantly misleading. The statute does not create any rights between cohabitants. Instead, it codifies a basis for modification of an alimony obligation between former spouses. (1) The statutory language expressly sets forth the importance of an economic consequence from the relationship as the basis for modification:

This paragraph recognizes only that relationships do exist that provide economic support equivalent to a marriage and that alimony terminable on remarriage may be reduced or terminated upon the establishment of equivalent equitable circumstances as described in this paragraph. The existence of a conjugal relationship, though it may be relevant to the nature and extent of the relationship, is not necessary for the application of the provisions of this paragraph. (2) As noted in the emphasized portion of this statutory excerpt, the focus is on the economic, rather than the conjugal, realities of the supportive relationship in question. This limitation has proven instructive in the cases that have been decided under the statute thus far. Before exploring the precedent that has evolved since the effective date of the statute, it is helpful to provide some of the backdrop which preceded the law's enactment.

Historical Background

Prior to the new statutory language, the only bright-line basis upon which to terminate alimony was the death of either party or the remarriage of the receiving spouse. The scenario that frequently frustrated paying spouses was when the "significant other" paid some or all of the recipient spouse's needs, but nonetheless the recipient spouse continued to receive the alimony because no actual remarriage occurred. The stumbling block frequently encountered in those cases was the inability to prove that the change was permanent--a statutory factor that had always existed for modification of alimony.

There were also sociological observations about the behavior encouraged by the former state of the law. This concern was expressed by Governor Bush, who questioned the impact on families resulting from the incentive to refrain from remarriage and instead to cohabit outside of marriage in an effort to avoid the termination of alimony. (3)

Against these and other backdrops, the supportive relationship legislation emerged. The question now is, "Has the supportive relationship statute drastically altered the landscape?" As will be explored more fully below, the answer is no. Nevertheless, the post-enactment cases have interesting issues worthy of note.

Appellate Decisions Thus Far

The battleground in the appellate cases has been over the role that the alimony recipient's need should play in modification proceedings when the basis for modification is a supportive relationship. Interestingly, the word "need" never appears in the supportive relationship statute. While some argued that it was axiomatic that need would play a central role in determining an appropriate amount of alimony when a supportive relationship existed, others steadfastly minimized or rejected the notion that need had any place in the analysis at all.

At present, there are only four appellate decisions addressing modifications based on the supportive relationship statute. They have all been decided within an 11-month period. Because it has some bearing on the development of the law, the cases are addressed below in chronological order.

The first opinion was issued by the Fourth District in Donoff v. Donoff, 940 So. 2d 1221 (Fla. 4th DCA 2006). In that case, the Fourth District approved downward modification based on a finding of a supportive relationship, but reversed the trial court for failing to reduce the amount of alimony sufficiently. Factually, it was found...