What do alimony and cohabitation have in common?  Until death or cohabitation do we part.  As a recent decision by the Utah Court of Appeals shows, your future relationship has an immediate impact on court awarded alimony.

In Scott v. Scott, a husband (John) agreed to pay his soon to be ex-wife (Jane) $6,000 per month in alimony.  The decree of divorce provided that alimony was to continue for the duration equal to the number of years that the parties’ marriage existed (twenty-seven years) but would terminate “upon the remarriage or cohabitation of wife or upon the death of either party.”  See Utah Code Ann. 30-3-5.

Shortly after the divorce, Jane began an “intimate and exclusive, long-term” relationship with her new found boyfriend.  A month following the breakup between Jane and her new boyfriend, John filed a petition to terminate alimony on the basis that the wife had “cohabited with an adult male.”  After a hearing, the district court determined that the wife had been “cohabitating” and terminated not only future alimony but PAST alimony as well.  The court based its decision on the fact that Jane had “unfettered access” to her boyfriend’s vacation homes, thus, the court considered the two were “cohabiting”.

You may be wondering, what is the definition of cohabitation?  The Utah Court of Appeals stated that cohabitation occurs when “a couple establishes a common residence and engages in a relatively permanent sexual relationship akin to that generally existing between husband and wife.”  Furthermore, the phrase “common residency” implies a term of “continuity”.  The Appellate court overturned the district court when it found that spending time together at vacation homes was not considered as a “common residence.”  Specifically, a common residence requires “more than a temporary brief period of time.”

Alimony is not considered a matter of right.  Rather, the judge has broad authority in considering the facts in each case. This discretion is what makes the Scott v. Scott case so special by considering past alimony payments.  Meaning, in the State of Utah, the court may retroactively terminate alimony and order the spouse to repay alimony for the duration of cohabitation.

For alimony to be awarded, the court must consider the following four elements: 1.  the financial condition and needs of the recipient spouse; 2. The recipient’s earning capacity or ability to produce income; 3. the ability of the payor spouse to provide support and; 4.  the length of the marriage.  Failure to consider these elements constitutes an abuse of discretion.  See Rehn v. Rehn, (Ut. App. 1999).

According to an article in Time Magazine, Judith McMullen, a professor of law at Marquette University, alimony has always been rare, going from about 25 percent of cases in the 1960s to about 10 percent today. With such low figures, choosing the right attorney to protect your alimony interest is that much more important.