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Codifying Cohabitation as a Ground for Modification or Termination of Alimony — So What’s New?

Family Law

C ohabitation has long been recognized as a basis for seeking the modification and/or termination of an alimony obligation. Until recently, such applications were governed strictly by case law and decided on a case-by-case basis. In the exercise of their discretion, the courts had only precedent as their guide. However, on June 10, 2005, a new post-divorce codification of the long-standing common law was enacted. F.S. §61.14 was revised to include a new subsection (b), authorizing a court to reduce or terminate alimony upon finding that “a supportive relationship has existed between the obligee and a person with whom the obligee resides.” The new statute embodies much of what the case law already provides. It also leaves many questions unanswered. In reality, not a whole lot has changed.

The Requirements
It is well established in Damiano v. Damiano, 855 So. 2d 708, 710 (Fla. 4th DCA 2003), that “[t]hree prerequisites are required for a modification of alimony: 1) a substantial change in circumstances; 2) that was not contemplated at the time of final judgment of dissolution; and 3) is sufficient, material, involuntary and permanent in nature.” In Bridges v. Bridges, 842 So. 2d 983, 984 (Fla. 1st DCA 2003),1 “[f]or cohabitation to be sufficient to warrant a finding of changed circumstances, the court must consider whether either of two factors is present: whether the cohabitant provides support to the recipient spouse, or whether the recipient spouse contributes to the support of the cohabitant.” The statutory requirements are similar, albeit with new catch phrases sprinkled about. F.S. §61.14(b)(1) stipulates that there must be “specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides.” In determining whether an award of alimony should be reduced or terminated because of such a relationship, “the court shall elicit the nature and extent of the relationship in question.” F.S. §61.14(b)(2).

The Burden of Proof
Cheney v. Cheney, 741 So. 2d 565, 566 (Fla. 4th DCA 1999), provides that the burden of proof is on the obligor “to show that the cohabitant provides support to the former spouse or the former spouse contributes to the other’s support.” The statute also places the burden squarely upon the obligor “to prove by a preponderance of the evidence that a supportive relationship exists.”2

The Circumstances
A review of the pre-codification case law reveals a myriad of circumstances to be considered by the court in making its determination including, but not limited to: the extent to which the new living situation has impacted the financial condition of the alimony recipient and the continued need for alimony, Reno v. Reno, 884 So. 2d 461 (Fla. 4th DCA 2004); Dibartolomeo v. Dibartolomeo, 679 So. 2d 72 (Fla. 4th DCA 1996); the extent to which the contribution of a cohabitant reduces the expense of the recipient spouse and lessens the need for alimony, Donoff v. Donoff, 777 So. 2d 1078 (Fla. 4th DCA 2001); Cheney v. Cheney, 741 So. 2d 565 (Fla. 4th DCA 1999); Springstead v. Springstead, 717 So. 2d 203 (Fla. 5th DCA 1998); the extent to which the recipient spouse is supporting the cohabitant, Schneider v. Schneider, 467 So. 2d 465 (Fla. 5th DCA 1985); the extent of the relationship between the cohabiting parties, Bentzoni v. Bentzoni, 442 So. 2d 235 (Fla. 5th DCA 1983); the permanent nature of the economic change, Long v. Long, 622 So. 2d 622 (Fla. 2d DCA 1993); the continuation of the cohabitation at the time of the hearing, Stuart v. Stuart, 385 So. 2d 134 (Fla. 4th DCA 1980); and the underlying purpose of the alimony award, Lee v. Lee, 544 So. 2d 1083 (Fla. 1st DCA 1989).

F.S. §61.14(b)(2)(a) – (k) sets forth a similar list of circumstances to be considered by the court in determining the nature and extent of the relationship including, but not limited to, the extent to which the obligee and their cohabitant have “held themselves out as a married couple” to evidence a permanent supportive relationship; the “period of time” they have resided in a permanent place of abode; the extent of their “financial interdependence”; the extent to which they have “supported” each other, the extent to which they have “performed valuable services for the other” or “the other’s company or employer”; whether they have “worked together to create or enhance anything of value”; whether they have “jointly contributed to the purchase of any real or personal property”; whether they have an express or implied agreement “regarding property sharing or support”; and whether they have supported “the children of one another.”

It is fairly apparent that any one or combination of these “factors” could have deftly been argued as a basis for a modification or termination by a reasonably thoughtful and creative advocate pre-codification, but the road map provided by the legislature surely does not hurt.

De facto Marriage
It is axiomatic in our common law that Florida does not recognize “de facto marriage.”3 F.S. §61.14(b)3 also makes it clear that Florida does not recognize de facto marriage.

What is Left?
Despite the many similarities between the case law and the statute, many unanswered questions remain; the most glaring of which is why should there be disparate treatment between de facto and de jure marriages where, for support purposes, the practical effect is the same. Courts have repeatedly grappled with this distinction and have even specifically requested that the legislature address this issue.4 Courts have overtly expressed frustration at the fact that the law of Florida creates no legal rights or duties between live-ins and that, as a result, such relationships are treated indiscriminately even though they are akin to a traditional marriage. In Lowry v. Lowry, 512 So. 2d 1142, 1143 (Fla. 5th DCA 1987), the court stated:

It is invidious and illogical for the law to discriminate against those who enter into de jure marriages and favor those who enter into de facto marriages instead. There may be a problem of proof in establishing a de facto marriage, but once such ‘marriage’ is established, it should have the same legal consequences in support matters as would a de jure marriage.

Nevertheless, the statute is silent on this issue except to recognize that “relationships do exist that provide economic support equivalent to a marriage and that alimony terminable on remarriage may be reduced or terminated upon the establishment of equivalent equitable circumstances as described in this paragraph.” This is essentially a restatement of the case law which provides no concrete authority.

In his letter to the secretary of state dated June 10, 2005, approving the new cohabitation statute, Gov. Jeb Bush also acknowledged the difficulties that have been encountered where de facto marriage is concerned. He stated:

I also recognize that current Florida law does not specifically encourage our courts to re-evaluate the merit of alimony payments when the obligee enters into a de facto marriage. In fact, current Florida law arguably encourages ex-spouses to cohabitate with new partners and avoid marriage in an effort to preserve alimony payments. That does not yield strong families. To the extent this bill addresses that shortcoming in current law, I support its goal.

Gov. Bush raised other concerns regarding the new statute in his letter including the fact that it “does not address how child support payments would be impacted by a modification or termination of alimony”; it “does not acknowledge the transitory nature of these cohabitation relationships by providing a means to reinstate terminated alimony should the supportive relationship dissolve”; and it “potentially allows modification of alimony payments based on any supportive relationship” (i.e., a friend or co-worker). Gov. Bush offered suggestions with regard to each of these concerns and expressed a desire that the legislature address them in the next legislative session.

Some other unanswered questions left open by the new statute include:
Question: Can a trial judge now provide in a final judgment of dissolution of marriage that a spouse’s alimony terminates upon remarriage or cohabitation?

In Dibartolomeo, the Fourth DCA held that a trial judge could not include a provision in a final judgment automatically terminating alimony upon cohabitation absent a valid settlement agreement. The statute is silent on this issue.

Question: In those pre-codification settlements where the negotiated agreement already contains a cohabitation clause (e.g., “in the event that the wife cohabits with an adult male for six consecutive months…”) does the new statutory language provide a separate and distinct basis for modification or does the inclusion of such a provision effectively waive application of the statute?

In Robinson, the court held that the terms of the parties’ marital settlement agreement which made specific provisions for modification based on cohabitation controlled. It is unclear now whether the statute would apply absent a specific waiver.

Question: Does the statute apply to all types of alimony including rehabilitative alimony or does the court first have to determine the purpose of the alimony?

In Lee, the court held that it must determine the purpose of the rehabilitative alimony (i.e., whether it was awarded for support or for some other purpose) before determining whether it can be terminated. The court noted that the termination of rehabilitative alimony upon remarriage also depended upon the purpose for which the rehabilitative alimony was originally awarded and the express provisions for termination in the original order awarding alimony. The statute, F.S. §61,14(3), refers to “alimony terminable on remarriage” and states that it may be “reduced or terminated upon the establishment of equivalent equitable circumstances” as described therein, but it does not specifically address the different types of alimony and whether the court must first determine the court’s purpose in making the original award.

Question: Is there a heavier burden upon the obligor when the alimony obligation exists by agreement as opposed to by judgment?
Case law provides that “[a]n alimony award set by the trial court based upon an agreement of the parties bears a heavier burden than is otherwise the case.”5 The statute makes no mention of this consideration.

Question: When is it appropriate to award a nominal amount as opposed to terminating alimony altogether?
In Bridges, the court held that the original alimony award should be reduced to a nominal sum of alimony to protect the former wife’s interests should she experience a significant change in the circumstances of her cohabitation.6 The statute offers no guidance here.

Question: Should alimony be reduced by the actual amount of need that has been eliminated, the actual amount of support being diverted, or should it be terminated entirely?

In Schneider, thecase was remanded for the trial court to consider how much, if any, of the support to the former wife was being used to support her boyfriend and to reduce the alimony payment “to that extent.” Similarly, in MacLaren v. MacLaren, 616 So. 2d 104, 106 (Fla. 1st DCA 1993), the court held that:

In Florida, the law is to the effect that, in the absence of an agreement, when a payor spouse challenges the receiving spouse’s right to continue to receive periodic alimony because the receiving spouse is cohabiting without the benefit of marriage, the court must determine whether either the new cohabiting partner is providing some support to the receiving spouse’s need; or the receiving spouse is diverting some of the support alimony to the new cohabiting partner. If the court finds the answer to either of those questions to be in the affirmative, it must then decide what effect such a fact should have upon the payor spouse’s obligation to continue to pay alimony.

The statute authorizes the court to “reduce or terminate” an alimony award, so we can only presume that a similar intent is inferred.
Question: What if the recipient spouse and the cohabiting partner stop cohabiting after a petition for modification and/or termination is filed?

In Stuart, the trial court denied the husband’s petition for modification noting that “the meretricious relationship is at an end.” The dissent pointed out that the former wife’s cohabitant moved out when the husband’s petition for modification was filed and that the testimony was “conflicting as to his intentions once the litigation was resolved.”7 The statute does not address this issue.

Going Forward
As the courts interpret and implement the new codification found in F.S. §61.14(b),we can expect a new body of case law to evolve and the unanswered questions may be resolved. It is also possible that the legislature will tinker with the new law. For the moment, litigants will have to rely upon the statute and the principles set forth in the prior case law where the statute is silent or unclear. Practitioners should be mindful of the possible implications of the statute and be certain to include reference to it in any prospective agreement regarding alimony.

1 “Because it does not entail the same benefits, duties and rights as a traditional marriage, cohabitation alone cannot precipitate a termination of alimony without the factual finding of a change in circumstances concerning the former spouse’s needs and finances.” Dibartolomeo v. Dibartolomeo, 679 So. 2d 72, 73 (Fla. 4th D.C.A. 1996).
2 However, it has been held that “unmarried cohabitation raises a presumption of changed circumstances” which means that once the party seeking modification establishes cohabitation and shows support to or from the cohabitant, a significant change in circumstances is established and the burden shifts to the recipient spouse to show continued need. Bridges, 842 So. 2d at 984. See also DePoorter v. DePoorter, 509 So. 2d 1141 (Fla. 1st D.C.A. 1987). The statute contains no such presumption.
3 DePoorter, 509 So. 2d at 1144.
4 In Lee, the First D.C.A. stated: “We feel compelled to comment upon an underlying social and public policy problem that inheres in the resolution of the issues raised in this case. The Florida district courts of appeal have given tacit, if not express, approval to the continuation of support alimony even though the recipient spouse has established a meretricious relationship involving cohabitation as man and wife without the solemnization required to make it a legal marriage. We point out this incongruity primarily to identify the need for specific legislation directly addressing the treatment of alimony payments to recipient spouse living in a state of unsolemnized marriage.” Lee, 544 So. 2dat 1088-1089.
5 DePoorter, 509 So. 2d at 144. See also Long, 622 So. 2d 622.
6 See also Reno, 884 So. 2d 461.
7 Stuart, 385 So. 2d at 135; see also Springstead, 717 So. 2d 203 (former wife ceased cohabiting with male companion one and one-half years before modification hearing).

Peter L. Gladstone is a partner with Gladstone & Weissman, P.A., and is board certified in marital and family law. He is a graduate of Brandeis University and the Benjamin N. Cardozo School of Law, Yeshiva University (J.D.). Mr. Gladstone is a member of the Family Law Section Executive Council and past member of the Family Law Rules Committee of the Bar.
Andrea E. Goldstein is senior associate at Gladstone & Weissman, P.A., in Ft. Lauderdale. Ms. Goldstein has practiced family law exclusively since graduating Touro College Jacob D. Fuchsberg Law Center with a J.D., magna cum laude. She practiced for 10 years in New York before relocating to Florida. She is a member of the New York and Florida bars.
This column is submitted on behalf of the Family Law Section, Jorge M. Cestero, chair, and Charles F. Miller, editor.

Family Law