To Cohabitate Or Not To Cohabitate – It Now Makes A Difference In MA Alimony Laws

Until recently, Massachusetts was historically one of the worst states, if not the worst state, for a divorce. Prior to the most recently enacted alimony reform, alimony for the most part was considered a lifetime event.

In an effort to reform and improve alimony, Massachusetts has now enacted new legislation called the Alimony Reform Act of 2011, which was signed into law by Governor Patrick on September 26, 2011. The intent of the new law is to make alimony more equitable for both parties after a divorce. More specifically, the law added a provision whereby an exspouse who was paying alimony (“ Payor” ), and whose ex-spouse that was receiving alimony (“Recipient” ), and was deemed to be ‘cohabitating’, based upon certain considerations, could petition the Court to have alimony suspended, reduced or terminated.

Prior to the new law, alimony typically only terminated upon the death of the Payor, the death of the Recipient, or the remarriage of the Recipient. As a result, the old alimony law encouraged cohabitation and discouraged remarriage, as the Recipient knew that alimony would terminate upon remarriage. Under the new law, alimony shall be suspended, reduced or terminated upon the cohabitation of the Recipient spouse with a partner for more than three (3) months. Persons are deemed to maintain a common household when they share a primary residence together, as well as other factors that would evidence cohabitation.

I recently handled a case that challenged the cohabitation clause of the new alimony law. In that case, I represented the Husband, who was the Payor. It was my position that his obligation to pay alimony should be suspended and/or terminated due to the fact that the Wife, or Recipient, was cohabitating with her boyfriend of six (6) years, although they did not share a primary residence. The Wife was 50 years old and her boyfriend was in his mid-60’ s.

In that case, the Wife traveled back and forth between MA, NH and FL to the, at least, four (4) houses owned by her boyfriend; Wife lived in a $1,000,000 house in Lincoln, MA which was owned by her boyfriend and for which he paid most, if not all, of the household expenses. Wife and her boyfriend had relayed through the children that some day they planned to get married; Wife was unemployed, while her boyfriend operated a multi-million dollar business in NH; Wife traveled to her boyfriend’s residence in St. Petersburg, FL every other weekend from on or about January 1 through May 1 when she did not have the children with her; the remainder of the time, Wife and her boyfriend traveled back and forth between the homes owned by her boyfriend in Lincoln, MA and Rye, NH, where the children had bedrooms in both locations; and Wife and her boyfriend sent out a family Christmas card with Wife and her boyfriend on the cover, along with a picture of all four (4) children of the divorced couple.

Wife’s counsel alleged that since the couple did not share a primary residence together, they could not be considered to be maintaining a common household. I argued, however, that due to their unique circumstances, that the couple had the ability to maintain multiple households, and therefore did not have to share a primary residence, although they intended to do so at some point in the future.

Based upon the above facts and circumstances, and taking into consideration the other factors in determining whether or not a couple is maintaining a common household, the Court held that the Wife and her boyfriend were cohabitating and ruled that alimony should be suspended.

If you are currently a Payor spouse, you should strongly consider consulting legal counsel to see if the new law is applicable to your current situation, or more importantly, that of your ex-spouse.