Tuesday, November 07, 2006

Cohabitation Can Affect Alimony Payments

“There, we adhered fervently to the axiom that this Court is "'bound' to construe constitutional rights, which 'operate in favor of the individual, against government,' so as to 'achieve the primary goal of individual freedom and autonomy.'"
--N. Fla. Women's Health & Counseling Servs., 866 So. 2d at 647

The new laws terminating alimony payments of those spouses whose ex is cohabiting with another person sounds very tempting and appears of offer hope to thousands of alimony payers.

Those of you hoping to have your alimony payments terminated because your ex has a live-in boyfriend, the hope of achieving it is a very distant possibility. The burden on you to prevail is very high and is very unlikely that you can achieve it.

Not only will the probability of failure be high in the courts but also you will probably incur considerable legal fees and expenses to challenge your ex and prove the existence of the cohabitational relationship.

The Florida law is relatively new and the court records show no caselaw in support of terminating alimony that has successfully challenged or supported the statutes. So there is very little to go on. The statutes are written in such a way as to give the judges excessive discretion in a manner reminiscent of the way the alimony statutes are written. There are no consistent narrow and definitive guidelines for them to follow.

Florida Statute 61.14 Enforcement and modification of support, maintenance, or alimony agreements or orders.

There are two cases prior to the implementation of the cohabitation statute that give some indication of how the courts viewed such a relationship:

DIBARTOLOMEO v. DIBARTOLOMEO, 679 So.2d 72 (Fla.App. 4 Dist. 1996)
“Absent a valid settlement agreement between the parties,[fn1] a trial judge may not include a provision in a final judgment automatically terminating alimony upon the receiving spouse's cohabitation with another. Buscemi v. Buscemi, 610 So.2d 674 (Fla. 2d DCA 1992); Condren v. Condren, 475 So.2d 268 (Fla. 2d DCA 1985). To justify a post judgment modification, the focus should not be so much on the cohabitation as on how the living situation has impacted the former spouse's financial condition and need for continued support. See Maclaren v. Maclaren, 616 So.2d 104, 106 (Fla. 1st DCA 1993). 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.” See Sheffield v. Sheffield, 310 So.2d 410 (Fla. 3d DCA 1975), cert. denied, 328 So.2d 844 (Fla. 1976).
RENO v. RENO, 884 So.2d 462 (Fla.App. 4 Dist. 2004)
"A trial judge may not order that alimony cease simply because the alimony recipient cohabits with another person, even when this arrangement appears to be one consistent with a de facto marriage. See Dibartolomeo v. Dibartolomeo, 679 So.2d 72, 72-73 (Fla. 4th DCA 1996). However, cohabitation may justify the modification and elimination of alimony, depending on how the new living situation has impacted the alimony recipient's financial condition and continued need for alimony. Id. at 73.

In this case, there appears to be conclusive evidence that almost all of the former wife's living expenses are being paid by her fiancé, as she conceded such. Nonetheless, while this may support the elimination of alimony, the former husband did not request this relief. Given that the former wife's needs may change in the future, the proper course is to reduce alimony, even if done to a nominal amount.”
However, there is encouragement in a recent case that indicates the burden of proving a need for continued alimony payments shifting to a cohabitating spouse.

DONOFF v. DONOFF, 4D05-3918 [November 1, 2006]
“In Bridges v. Bridges, 842 So.2d 983, 984 (Fla. 1st DCA 2003), the court held that when a former spouse paying alimony has established that the payee is receiving support from an unmarried cohabiting partner, a substantial change in circumstances has been shown, and the burden then shifts to the recipient spouse to show if there is any continued need for alimony. Bridges explained that the burden of proof shifts to the receiving party to justify an amount of alimony because the true economic condition is uniquely within her knowledge and may not be available to the payor. The court followed Lee v. Lee, 544 So.2d 1083 (Fla. 1st DCA 1989), in this holding."
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Be sure to visit these sites: www.abolish-alimony.org/ and www.alimonycentral.org