The Alimony Reform Act, effective March 1, 2012, finally brought Massachusetts in line with alimony policies in almost all other states by considering cohabitation, retirement and length of marriage as important factors in conjunction with setting the duration of a person’s right to receive alimony.

This week’s article addresses cohabitation, which was the central subject of a trial handled by Grossman & Associates, Ltd. on January 24, 2013 in the Middlesex Probate Court in Cambridge.  The new statute says: “General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household, as defined in this subsection, with another person for a continuous period of at least 3 months.”

There is no Massachusetts case yet to help us interpret the meaning of the cohabitation provision, so we can only use our plain English interpretation to anticipate what might happen.

The first hurdle is to prove the cohabitation itself.  In anticipation of the statute, some alimony recipients changed their cohabitation.  People have been known to conceal their cohabitation in order to avoid detection and loss of alimony.  Private investigators report that surveillance for cohabitation has risen.  Those seeking to prove cohabitation look to various sources such as voter registration, tax documents and employment records to show that people are residing at the same address.

Once cohabitation is established, the analysis turns to the alimony recipient’s need, and the payor’s ability to pay.  Whether the need analysis at the time of cohabitation is the same as the need analysis at the time of divorce is to be determined by future case law.  What guides the Judge in determining whether to reduce, terminate or suspend alimony?

The importance of determining “need” has been shown in various cases, such as Heins v. Ledis, 422 Mass. 477 (1996) and Gottsegen v. Gottsegen, 397 Mass. 617 (1986), as alimony is not intended to pay 100% of a recipient’s expenses.  Doing so would only encourage a recipient to increase their spending, incur additional credit card debt, and live a life more lavish than they can afford.  Burdening the payor with the obligation to meet their former spouse’s arbitrary, and perhaps inflated expenses, is unfair.  Determining need is a fact sensitive analysis made by the Judge, who is guided by past cases and a sense of fairness.

So far, many cohabitation cases have settled without a trial, meaning that the parties reached and signed an agreement between themselves which documents the change in alimony.  Their Agreement is then presented and approved by a Judge, who makes the Agreement a Court Judgment.  Such settlements are not decided by a Judge after hearing the facts at trial, but instead are merely reviewed by the Judge for fairness, and are not usually instructive of how your case would be decided at trial.  While these settlements are part of the court’s public record, they are not generally available to the public unless you are one of the party’s to the case or one of the connected attorneys.

The most expeditious way to resolve the cohabitation issue is directly with the opposite party, or through mediation, to explore settlement without substantial litigation cost.  If reason prevails, alimony can be reduced or terminated, an Agreement drafted, signed and approved.  Absent agreement, we wait to see what decisions are made by Judges on this issue, keeping in mind that rarely are two cases built on the same facts.


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