Family Law

FOR LOVE OR MONEY

By Fox Rothschild

As practitioners we advise clients that if they cohabit after they have been divorced they will most likely not receive alimony. 23 Pa.C.S.A. § 3706 provides that, “no Petitioner is entitled to receive an award of alimony where the Petitioner, subsequent to the divorce pursuant to which alimony is being sought, has entered into cohabitation with a person of the opposite sex who is not a member of the family of the Petitioner within the degrees of consanguinity.”  It is important to note however that in cases resolved by property settlement agreements, this section applies only if the agreement contains language that cohabitation terminates the alimony obligation. Van Kirk vs. Van Kirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984). 

What determines whether parties are cohabitating? The Divorce Code fails to define cohabitation. However, the courts have generally defined cohabitation as “two persons of the opposite sex resid[ing] together in manner of husband and wife, mutually assuming those rights and duties usually attendant upon the marriage relationship. Cohabitation may be shown by evidence of financial, social and sexual interdependence, by a sharing of the same residence, and by other means.” Miller v. Miller, 508 A.2d 550, (1986). This case appears to follow some earlier trial court precedent such as Soby v. Soby, where the Montgomery County Court of Common Please said that alimony would not terminate because of the amount time a person spends with another unrelated adult, but needed to be supplemented by a showing of support in a financial sense. 113 Mont. Co. L. R. 406 (1983)

When an issue of cohabitation arises, it becomes a matter of evidence. How much evidence can be obtained to show that the alleged “cohabitors” are in fact linked financially, socially, and sexually. Interestingly, the cases do not clearly articulate how much evidence is enough to prove cohabitation. So, when advising your client regarding cohabitation, it is important to make sure that they understand the “haziness” of the definition of cohabitation, and the difficulty with proving (or disproving) cohabitation. 

Full post as published by Pennsylvania Family Law on February 03, 2009 (boomark / email).