Listen to this article
A significant change to divorce laws in Massachusetts is the provision in the new Alimony Reform Act of 2011, which went into effect on March 1 of this year.
The provision provides that the cohabitation of a maintenance recipient with another person constitutes grounds for termination, suspension or reduction of the maintenance obligation of the maintenance debtor.
What does this mean for the many alimony recipients who lived together for months, if not years, before the new law, and for those who are thinking about living together in the future?
This article attempts to explain the nuances of the Maintenance Reform Act of 2011 as it relates to specific situations where a maintenance recipient lives or will live together in a marital relationship in the future.
Under prior law, alimony was typically waived indefinitely and continued until, whichever occurred first, the death of one of the parties, the remarriage of the recipient, or a court order pursuant to a judgment following the filing of a lawsuit for modification of the claim, there has been a significant change in circumstances since the previous order.
What frustrated many payers was the continued maintenance obligation even though the recipient lived with a romantic partner in a marriage-like relationship.
In some cases, recipients deliberately chose not to marry simply to continue receiving maintenance. This prompted the movement to include a cohabitation provision in the new law to avoid such shenanigans.
• What is cohabitation?
According to the law, maintenance “shall be suspended, reduced or terminated as soon as the recipient's spouse begins to live together, if the payer proves that the recipient has lived in a common household with another person for a continuous period of at least three months.” GLc 208, Section 49(d).
The law lists several factors to determine whether the recipient's spouse is living in a household with another person. Although not explicitly stated, the factors enumerated reflect a romantic relationship similar to marriage, and not simply sharing a primary residence with, for example, a sibling, roommate, nanny, or temporary lodger.
The law will boost private investigation business as investigators look for evidence as to whether alimony recipients are actually cohabiting within the meaning of the law.
• Financial contribution from the life partner
Although maintenance still depends on the need of the recipient and the ability of the recipient to pay, the law does not contain any explicit reference to the financial contribution of the recipient's partner.
While in most cases the financial contribution of a civil partner would reduce the maintenance recipient's need for financial support from his or her former spouse, in certain circumstances the civil partner could place a financial burden on the maintenance recipient.
But under the law, financial inquiries are irrelevant, at least initially, and the focus is only on the question of whether the recipient is cohabiting.
The theory behind this comparison is that ex-spouses should not be required to support former spouses who are in a committed, marriage-like relationship. Once such a relationship exists, it is the couple's responsibility to support themselves, regardless of an ex-spouse.
However, the reality is that some cohabiting recipients cannot achieve such financial independence based on their cohabitation agreement alone.
Nevertheless, in such a case, the person liable for maintenance may at least be entitled to a reduction in his maintenance obligation.
• Under what circumstances does cohabitation justify suspension, reduction or termination of maintenance?
Once it is determined that a maintenance recipient is actually a person living in a cohabiting relationship within the meaning of the law, a complaint for modification by the payer will examine whether this fact leads the payer to suspend, reduce or terminate the maintenance entitled to maintenance.
Then the finances come into consideration, because even if the law does not provide any information about cohabiting recipients in this regard, the court must of course examine the finances to determine whether a reduction is justified as opposed to a termination.
If the relationship is long-term and the domestic partner actually contributes financially and has savings and/or assets, termination would likely be justified.
However, if the partner is unemployed or disabled, the payer may only be entitled to a reduction.
This investigation would seemingly require the domestic partner to find out what their income, assets and liabilities are as part of a court modification action. This can create a double standard because the law is clear that payor spouses are protected from such discovery if the tables are turned and the recipient files a modification action seeking an increase or continuation of alimony.
A maintenance recipient must indicate in his financial report exactly what expenses his partner is paying for in the household. Such a disclosure might suffice in lieu of a detailed disclosure in this regard, apart from perhaps issuing a few subpoenas to banking institutions to verify the representations.
•When is a change justified for reasons of cohabitation?
Family lawyers in Massachusetts are being inundated with calls from alimony payers excited about the announcement of alimony reform in the Commonwealth. They want to know what and when they can provide relief.
The answer is complex and factually based and this article will only address the question of living together.
The law provides that alimony “shall be suspended, reduced or terminated if the recipient's spouse is cohabiting if the payer proves that the recipient has lived in a common household with another person for a continuous period of at least three months.”
The words “after cohabitation” suggest problems for payers in situations where alimony recipients were already living together before the law was passed, as the wording suggests future cohabitation.
If the recipients are already in a long-term cohabitation relationship, what significant and significant change in circumstances warrants a change in support, other than the passage of the law? There may not be any.
With regard to the mere reliance on the enactment of the Act itself and the statement therein that maintenance debtors are entitled to suspension, reduction or termination of maintenance where the recipient is cohabiting, Section 4(b) of the Act clarifies: that section 49, which governs cohabitation, is not considered a material change in circumstances justifying a change in the amount of existing maintenance orders.
Therefore, in cases where a recipient was already cohabiting at the time the law came into force on March 1, there is no change in circumstances for the maintenance debtor to be entitled to receive compensation.
The payer would need other, more traditional reasons to justify a change, e.g. B. a reduction in income since the date the alimony was awarded or last modified. And in any case, the relief of a person liable for maintenance can only be temporary, since the law provides for the reinstatement of maintenance in cases where the cohabitation no longer exists. See GLc 208, Section 49(d)(2).
Because the law is prospective in its application under Section 4(a), the cohabitation investigation for payors regarding their ex-spouse began on March 1, 2012 and can only be satisfied if the cohabitation still exists after the expiration of 90 days or until end of May.
If the recipient is in a non-marital relationship that began before March 1, and cohabitation is the only reason for which the payer is seeking compensation, then there is arguably no change in circumstances regardless of the act (what and cannot in itself represent a change). under circumstances of existing alimony judgments, except in situations where payers pay in excess of the new maximum limits established by the law). See GLc 208, Section 49(b).
However, pre-existing support recipients who cohabit for a period of 90 days or longer after March 1 are subject to a suspension, reduction, or termination of their support obligation if the payor files a modification complaint. since such a situation arose after the implementation of the law and therefore represents a change in circumstances from the previous ruling, regardless of the adoption of the law itself.
New support orders issued after March 1 may be modified under the new law when a recipient begins cohabitation.
Diploma
According to the law, cohabitation is a clear reason for changing new and existing orders if cohabitation began after March 1st.
In all other circumstances, the fact of cohabitation exposes the recipient to possible curtailment or dismissal, but this is by no means certain and depends largely on what other reasons there might be for a change.
Maureen McBrien practices family law at Todd & Weld in Boston and is an adjunct professor at Suffolk University Law School. She is currently co-authoring, with Charles P. Kindregan Jr., the fourth edition of Massachusetts Practice, Family Law and Practice. She can be contacted at [email protected].
Comments are closed.