Live-in Lover Complaints: Think Twice Before You File
| Jurisdiction | Georgia,United States |
| Citation | Vol. 19 No. 2 Pg. 0010 |
| Pages | 0010 |
| Publication year | 2013 |
A Look at the Law
by Deborah S. Ebel and Margaret E. Simpson
Imagine the following scenario: Hubert and Winona decide to divorce after many years of marriage during which Hubert has been the financial breadwinner. Hubert agrees to pay $5,000 per month in alimony to Winona for a period of five years. The parties enter into a written settlement agreement which is adopted by the court and made a part of their divorce decree.
After one year of consistently paying $5,000 each month to Winona, Hubert discovers that Winona has begun dating Beau. Hubert further learns that Beau has been spending the night at Winona's home. Hubert is overjoyed, thinking that his days of paying alimony to Winona are over now that she has found someone new. If Hubert were to come to you seeking legal advice about this situation, however, then you may have to give him some bad news.
Georgia's "live-in lover" statute would give Hubert grounds to modify his alimony payments downward or even terminate them, but only if he can meet a pretty high burden of proof.[1] Hubert will have to be able to show that Winona and Beau are living together openly and continuously and that they are either having sex or sharing living expenses. You will also need to warn Hubert that the consequences of filing a "live-in lover complaint" and losing are a bit drastic. O.C.G.A. § 19-6-19(b) provides for a mandatory award of the reasonable attorney's fees of the defendant if the plaintiff does not prevail.
Proving Your Case
In order to win his live-in lover complaint, and thus not get stuck with Winona's attorney's fees, Hubert must prove by a preponderance of the evidence:
- an open and continuous cohabitation of Winona with Beau, and
- either sexual intercourse between Winona and Beau or sharing of expenses of cohabitation between Winona and Beau
Georgia's "live-in lover law," O.C.G.A § 19-6-19(b), provides in part:
Subsequent to a final judgment of divorce awarding periodic payment of alimony for the support of a spouse, the voluntary cohabitation of such former spouse with a third party in a meretricious relationship shall also be grounds to modify provisions made for periodic payments of permanent alimony for the support of the former spouse. As used in this subsection, the word "cohabitation" means dwelling together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person. [emphasis added].
As in a typical modification based on changes in financial status or income, the evidence must be from a period of time after entry of the final judgment. In addition to proving a continuous and open cohabitation, the claimant must also prove the existence of a meretricious relationship. Although the word meretricious connotes a cheap or vulgar relationship, that is not the meaning for this term of art as used in this statute. Rather, Georgia courts have held, that for the purposes of this statute, a meretricious relationship is simply one in which there is either sexual intercourse or a sharing of the expenses of cohabitation.[2]
In Hathcock v. Hathcock, 249 Ga. 74, 76, 287 S.E.2d 19 (1982), we construed "meretricious" as used in O.C.G.A. § 19-6-19(b) to define the two situations which would justify the trial court's modification of alimony under that section:
[U]pon proof of sexual intercourse between the former spouse and the third party although no proof is offered tending to establish that the former spouse received from, gave to, or shared with the third party expenses of their cohabitation.... [T]he statute also applies upon proof that the former spouse received from, gave to, or shared with the third party expenses of their cohabitation although no proof is offered tending to establish sexual intercourse between the former spouse and the third party.[3]
Thus, one of these elements, namely sexual intercourse or shared living expenses, must be proven in addition to the element of an open and continuous cohabitation.
Open and Continuous Cohabitation
Cohabitation must be open and continuous, not secret and hidden, and akin to the living arrangements of married people.[4] For the purposes of a live-in lover claim, Georgia courts have considered situations in which there was proof that a former spouse had had the same overnight guest on a number of occasions; in these situations, the courts have held that having the same overnight guest even on multiple occasions is not the equivalent of continuous cohabitation.
Since the constitutionality of O.C.G.A. § 19-6-19(b) depends upon the meretricious relationship being one similar to marriage, it follows that the cohabitation must go beyond periodic, physical interludes. [emphasis added].[5]
As the cases cited above set forth, periodic physical interludes are not proof of open and continuous cohabitation. The ruling of the trial court in Donaldson-that having an unrelated male guest past midnight for more than four nights out of any 30-night period would be tantamount to being in a meretricious relationship-was considered unreasonably intrusive and against the holding in Hathcock. So, even if Hubert has airtight evidence that Beau has spent the night with Winona on multiple occasions, that alone will not be enough to meet his burden of proof.
Receiving mail at a given address is not the same as residing at the address continuously.[6] It takes far more than a third party receiving mail at the former spouse's residence to prove that the third party continuously resided at that address.[7] So, even if Hubert can prove that Beau has spent the night with Winona on multiple occasions and that Beau recieves mail at Winona's address, without further evidence, he will not prevail.
Sexual Intercourse or Shared Expenses of Cohabitation
If a former spouse who pays alimony has sufficient evidence of an open and continuous...
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