When Section 706 (now 3706) in the Divorce Act 1980 was drafted and adopted into law, it was disarmingly simple. It said,
706. Prohibition of maintenance
No applicant is entitled to alimony if, after the divorce on the basis of which alimony is sought, the applicant entered into a cohabitation relationship with a person of the opposite sex who does not belong to the applicant's family according to the degree of consanguinity.
The term “consanguinity” is defined in 23 Pa.SC 1304(e) in a paragraph that looks like it was written by a fifth grader. This law states, in succinct adult language, that you cannot marry your mother, father, sister, brother, first cousin, aunt, or uncle. And you can't marry your child. It only takes 90 words to express that. The goal here was simple. Yes, if you are divorced, you can still seek refuge with a family member, but if you start drifting into the household of someone else “of the opposite sex,” your support may be canceled. “Living together” is an artificial term in its own right. The leading cases on this sensitive issue are Twilla 664 A.2d 1020 (Pa. Super. 1995) and Miller 508 A.2d 550 (Pa. Super, 1986).
Back to the question of the “opposite sex”: the law is only slowly following current trends. In 2013, there was a dispute in Pennsylvania over whether the registry of wills could issue marriage licenses to people of the same sex. By 2015, the U.S. Supreme Court upheld similar practices in other states in Obergefell v. Hodges, 576 U.S. 644 (2015). Meanwhile, 18 Pa.CS 5902-5903 continued to define “homosexual relationships” as a crime until September 2022. If you think about it, you could actually get a license to commit a crime in Pennsylvania from 2015 to 2022.
Now the world of sexual activity has become more complicated, to say the least. We could probably devote more than 90 words to the newly defined concepts of sexual orientation and the activity or inactivity associated with it. Fortunately, there is still case law attempting to clarify what cohabitation is. But attorneys who have tried these cases will tell you that they tend to give long depositions and lack “standards.” Another blogger wrote that, among other things, judgment must be made on who walks whose dog and who takes out the trash. No unfair evidence…just hard to listen to.
This leads this author to question whether Section 3706 still makes sense. Section 3701(b) already requires 17 factors to be evaluated. These include the recipient's ability to support themselves, as well as their relative income and needs. The alimony recipient is less entitled to this benefit if she lives with a non-binary roommate in a one-bedroom apartment than if she moves into her uncle's $6 million brownstone house on the Upper East Side of Manhattan ? Is this somehow a factor if the recipient says they are celibate or undergoing gender reassignment surgery? And how?
Section 3701 alimony can be modified unless it is subject to a settlement agreement (which governs modifiability). It offers just about every factor in the world for the judges to evaluate. Maybe it's time to give Section 3706 a break and use this statutory number for more useful purposes. In other words, let the courts consider how “cohabitation” should affect alimony, taking all factors into account, rather than using it as an absolute yardstick.
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