Cohabitation and Termination of Alimony
Alimony in Utah can be terminated by the paying spouse establishing that their former spouse is cohabitating with another person. Utah Code §30-3-5(10). The Utah Supreme Court defines cohabitation as to live together as husband and wife. Myers v. Myers, 266 P.3d 806, 809 (UTAH 2011) (citing Haddow v. Haddow, 707 P.2d 669, 671 (UTAH 1985). This means that frequent visits will not be sufficient to support a finding of cohabitation.
The Utah Supreme Court has not provided an enumerated list that will establish cohabitation because there is no single prototype of marriage that all married couples conform to. Levin v. Carlton-Levin, 318 P.3d 1177, 1181 (Utah Ct. App. 2014). What the court did instead establishes a list of hallmarks of cohabitation including: (i) a shared residence; (ii) an intimate relationship; and (iii) a common household involving shared expenses, shared decisions, shared space, and shared meals. The court cautioned that these are merely factors in the ultimate inquiry into the existence of a relationship akin to that existing between husband and wife. Myers, 266 P.3d at 809.
The Utah Courts that have looked at the issue of cohabitation have determined relevant whether the ex-spouses love interest has a key to their home and whether they come and go as they please. Two individuals can only be deemed to be cohabitating if they establish a common abode that both parties consider their principal domicile for more than a temporary or brief period of time. Having keys to the home and the ability to come and go as they please goes far in establishing that.
An intimate relationship is more than mere sexual contact and common residency, it requires a sexual relationship that is relatively permanent, like that existing between a husband and wife. In Haddow, the court found that a fourteen-month-long relationship, a vacation to Hawaii where the parties shared a bed and spending the night in Nevada was sufficient to show the relationship was “relatively permanent”.
Factors for determining a common household include whether they both have personal property at the home, they share expenses, share decisions, share space, and share meals with one another. The court has found a common household even when both people in the relationship have their own homes when the above factors are present.
If a paying spouse suspects their former spouse of cohabitating, they must establish to the court that the above factors are met and the alimony should be terminated. Proving cohabitation is difficult. If you are subject to an alimony order either as a paying party, or a receiving party, and cohabitation is on your mind, you should consult an attorney in your area that can help you determine what your rights are.
Nothing in this article is intended to constitute legal advice and should not be construed as such.