Is Having A Roommate Considered “Cohabitating?”

 In Law Planet

wooden gavalIn divorce situations, it is not unusual for the person who is paying alimony not to want the recipient to be “shacking up” with another person. Florida has had a statute dealing with supportive relationships for quite some time. However, what happens if the settlement agreement makes specific provisions for alimony terminating when one spouse is “cohabitating” with a person of the opposite sex? This very issue was presented in the Florida 2nd DCA opinion of Atkinson v. Atkinson. In this case, the parties’ settlement agreement called for termination of alimony if the wife was cohabitating with a male. Shortly after the case was resolved and the divorce granted, it appeared the former wife began living with a man. The former husband subsequently filed a petition for modification citing the settlement agreement provisions and requesting a termination of his alimony when he found out that his ex-wife had a male living at her house. Upon hearing that the former wife had been living with this man for several years, the trial judge terminated alimony.

A reading of the opinion reveals the various testimony that occurred during this hearing that resulted in the reversal of the termination of alimony decision. Although the man had been living with the ex-wife for quite some time, it actually appeared from a reading of the transcript that he was not actually in a relationship with the ex-wife and they were actually more like roommates. Both the former wife and this man testified that they did not share any expenses, they lived their lives largely separate, they slept in separate bedrooms and did not have an intimate relationship. He paid her rent of $400 per month, maintained a separate Post Office box, did not buy groceries, or contribute to the utility bills. The fact that the former wife had loaned him $15,000 to assist them in buying an automobile that was titled in both their names was not of relevance. The former wife’s name on the title was done at the suggestion of an employee at the car dealership, the employee confirmed this was the case. Both the former wife and the male would go out with others of the opposite sex and, for all practical purposes, it appears they really were roommates. The trial judge seemed to gloss over these indicia of a relationship and focused solely on whether a male was living in the former wife’s home. The appellate court thought this was an insufficient analysis and cited to the unrebutted testimony that seemed to establish a lack of a relationship rather than a supportive relationship, which is more in line with what the settlement agreement seemed to contemplate. The mere act of the former wife living with a man in and of itself was not sufficient to terminate the alimony under the specific contractual provision of “cohabitation with a male”. The appellate decision goes to great lengths to define cohabitation to the point that the relationship between the former wife and her roommate clearly did not fit the judges’ interpretation of what this entails.

Modification of alimony based upon either statutory or contractual provisions regarding cohabitation needs to be looked into in great detail prior to being sought. In this situation, as a result of the appellate court reversal, the former husband now has to make up all of the previously terminated alimony payments and to also continue paying the agreed-upon amount. That’s going to add up to a lot of money that he’s going to have to pay overtime.

Images courtesy of freedigitalphotos.net by suphakit73

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