Retiree risks alimony due to 'cohabitation'

Court ruled retiree could lose her alimony despite boyfriend’s separate residence

By Pat Murphy
The Daily Record Newswire
BOSTON, Mass. — Ozzie and Harriet would faint dead away at the living arrangements practiced by both young and old in this new century. But for divorce attorneys, the question often becomes whether a client’s pairing with another individual has crossed the line into “cohabitation,” jeopardizing hard-won alimony.

Last week, one state high court ruled that a retiree could lose her alimony, notwithstanding that fact that she and her boyfriend maintain separate residences and independent lives. 

Joseph and Shannon Paul were divorced in 2006 in Kent County, Delaware. The parties’ divorce agreement provided for the termination of Shannon’s alimony upon her “cohabitation” with another individual as that term is defined by state law. Under Delaware’s alimony statute, “cohabitation” means “regularly residing with an adult … if the parties hold themselves out as a couple.”

Sometime prior to 2010, Shannon became romantically involved with another retiree, Fletcher Vance. Keen to end his alimony payments, Joseph Paul hired a private investigator to conduct surveillance for the purpose of determining whether Shannon was cohabiting with Vance.

Joseph thought he had built a strong case after months of work by his private eye, so in 2010 he filed a petition to terminate alimony.

At the hearing on the matter, the private investigator testified that, over a period of about five months, he saw Vance’s car at Shannon’s house 25 of the 37 days that he observed. The car was there late at night and early the next morning. In addition, the investigator observed Vance “retrieving the paper, taking the trash out, feeding the cat, opening the garage door (which he knew the code to), and watering plants, all on multiple occasions.” He also saw Vance doing yard work.

For her part, Shannon testified that she and Vance have an exclusive relationship and that he stays at her house about two to four nights a week. They go out for dinner and dancing, and take vacations together, sharing expenses.

According to Shannon, Vance keeps no clothing or personal effects at her house. Shannon explained that, although attached to each other, they can’t live together because he is neat and she is messy.

Vance testified, too. He explained that he maintained his own home because he needs to feel independent. In addition, Vance explained that he is emotionally attached to his home because it preserves memories of his late wife.

The trial judge denied Joseph’s request to terminate his alimony payments, concluding that the evidence failed to show that Shannon permanently or continuously resides with Vance.

In reaching this conclusion, the trial judge pointed to the fact that, as retirees, both Shannon and Vance have abundant free time to spend together. Yet the evidence showed that Shannon and Vance pursue different activities during the day. In addition, the judge found significant the fact that there is no real pattern to the time they spend together.

Finally, the trial judge ruled that the term “reside” as used in the alimony statute “excludes a couple who maintains separate and independent dwelling places.”

Last week, the Delaware Supreme Court had its crack at the issue and determined that the trial judge completely missed the boat in deciding whether Shannon and Vance are cohabiting.

First, the court said that the trial judge made the mistake of applying the dictionary definition of “reside” to the case.

In rejecting the notion that the state cohabitation law requires a showing that a couple dwell together “permanently or continuously,” the court observed that the alimony statute includes the modifier, “regularly.”
Accordingly, the court explained that “the term ‘regularly residing’ does not mean ‘residing.’ It means usually residing or, stated another way, ‘living together with some degree of continuity.’”

The court also found that the trial judge placed undue emphasis on the fact that Shannon and Vance are both retired.

“[T]he fact that [Shannon] and her companion are retirees does not change the analysis of whether they are regularly residing together,” the court said.

According to the Delaware Supreme Court, the trial judge also was overly impressed by the fact that Shannon and Vance regularly spent their daytime hours apart, pursing different hobbies. In explaining the problem with emphasizing this factor in making a cohabitation determination, the court said:

The implicit premise is that married retired couples spend most of their time together. There is no evidence, however, to support that premise. Thus, their daytime activities have little relevance to the issue of whether they live together with some degree of continuity.

Finally, the court found that the trial judge went far astray in concluding as a matter of law that two people cannot be regularly residing together when they maintain separate homes:

It is settled law that a person may have more than one residence at the same time. The fact that a couple maintains two residences is less important than the extent to which they are involved in the normal activities associated with home ownership. The Family Court found that Vance behaves like someone who lives at Wife’s home. He has a key to Wife’s house, takes out the garbage, does yard work, and showed a painter around the house.

So the trial judge will have to reexamine Joseph’s petition to terminate Shannon’s alimony with a newfound understanding of the state’s cohabitation standard. Given the signals from the state supreme court, Shannon may be well advised to prepare for life without that monthly check from her ex-husband.


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