I have received a number of questions from clients regarding cohabitation: "What is it?, How does it affect my spousal support? When is someone cohabitating? Can I quit paying spousal support because she is cohabitating?, etc.,etc., etc."
There was an excellent case out of the Ohio Fifth Appellate District, Delaware County, July 25, 2013, Laveer v. Laveer, 2013 Ohio 3294 that gave a great explanation of the meaning of cohabitation.
In brief, ex-husband was paying spousal support to ex-wife. Ex-husband claimed wife was cohabitating with boyfriend and he petitioned the Court to stop paying spousal support. The ex-husband alleged that ex-wife had been residing in the marital home with boyfriend since September of 2010 and that she had falsely testified at the time of the final hearing that she was not in a relationship with anyone. Ex-husband testified that he believed that boyfriend had moved into the house and was staying overnight. He indicated that boyfriend kept personal belongings there including shoes, clothing, a toothbrush, hair gel and a shaving kit. According to ex-husband, boyfriend's truck was constantly parked outside ex-wife's residence and was in the driveway many days in a row. He further testified that while boyfriend was occupying the former marital house, he was paying the utilities and the mortgage. Ex-husband further testified that ex-wife would sometimes take boyfriend to work and that boyfriend's employer told him that boyfriend lived there. Ex-husband was unaware if boyfriend owned his own residence and testified that he had seen boyfriend at the new residence that ex-wife had purchased and closed on in May or June of 2011.
Ex-husband agreed that he had paid a private investigative firm to conduct surveillance of ex-wife to determine if she was cohabitating with boyfriend. He testified that there were times when they found boyfriend's vehicle at ex-wife's residence and times when they did not. He admitted that there was one time when they found boyfriend's vehicle at boyfriend's home and times when he did not see boyfriend's truck when he drove by appellee's home.
Private investigator stated that over a roughly one month period of time, she only saw ex-wife and boyfriend together on two occasions and saw boyfriend at ex-wife's residence one time. She testified that she saw boyfriend's truck at his own address on the weekends and that when she saw the truck at ex-wifes's house during the week, ex-wife was driving.
Well did the Court find that Ex-wife and Boyfriend was cohabitating????? The Court held there was no cohabitation. It is a well established principle in Ohio that the question of cohabitation is to be determined by the trier of fact [The Court].
The Court held [paraphrased]: Within the context of a divorce decree, "'cohabitation' contemplates a relationship that approximates, or is the functional equivalent of, a marriage." In determining whether cohabitation exists: "Many factors may be considered in deciding whether cohabitation exists in a particular set of facts. We note that 'cohabitation' describes an issue of lifestyle, not a housing arrangement. Further, when considering the evidence, the trial court should look to three principal factors. These factors are:
(1) an actual living together;
(2) of a sustained duration; and
(3) with shared expenses with respect to financing and day-to-day incidental expenses.'
In reviewing a case involving domestic violence, the Ohio Supreme Court set forth two primary factors to consider in determining cohabitation: "Having considered the above definitions of 'cohabitant' and 'family or household member' we conclude that the essential elements of 'cohabitation' are:
(1) sharing of familial or financial responsibilities and
(2) consortium.
Ohio Revised Code 2919.25(E)(2) and related statutes. Possible factors establishing shared familial or financial responsibilities might include provisions for shelter, food, clothing, utilities, and/or commingled assets. Factors that might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations. These factors are unique to each case and how much weight, if any, to give to each of these factors must be decided on a case-by-case basis by the Court."
This Court examined "whether or not a particular living arrangement rises to the level of 'cohabitation' we stated that "cohabitation" is a factual question to be initially determined
by the trial court.
Yarnell V. Yarnell, 2006 Ohio 3929, Fifth Appellate District, Delaware County, "A finding of cohabitation can have a direct impact on a spousal support award. Trial courts have the power to terminate or reduce an award of spousal support based on cohabitation. While R.C. 3105.18(C) lists a number of factors for a trial court to consider when determining spousal support, cohabitation is not expressly listed as a factor. However, R.C. 3105.18(C)(1)(n) states that any other factor that the trial court expressly finds to be relevant and equitable can be used to determine spousal support." We cite this decision only for the proposition that spousal support can be terminate or reduced if the economic circumstances of cohabitation should so warrant a reduction or termination.
In another case: The ordinary meaning of cohabitation as the acts of a man and woman living together, noting that isolated acts of sexual intercourse, unaccompanied by other aspects of living together, would not constitute cohabitation, but that, on the other hand, cohabitation can be based entirely upon acts of living together without sexual relations. Cohabitation requires some regularity of functioning as would a husband and wife, either sexually or otherwise. Cohabitation, then usually will be manifested by a man and woman living together in the same household and behaving as would a husband and wife, although there need not be an actual assertion of marriage.
So what does this all mean? Cohabitation comes down to three basic principles:
(1) an actual living together;
(2) of a sustained (long, regular) duration; and
(3) with shared expenses with respect to financing and day-to-day incidental expenses.
The 3rd principle seems to have the greatest weight with the courts. Two people can be living together on a regular basis (three to five times-a-week) for months on end but if they do not share living expenses and share day-to-day common incidental expenses then their is no cohabitation. Things that will help to prevent cohabitation is both people having their on residence, both people having their own mail address, checking accounts, and savings accounts. No joint accounts and most important of all: Do Not Share Expenses.
A person receiving spousal support is entitled to live a full life. They may have boyfriends/girlfriends, have sexual relations, may date and enjoy life. Cohabitation is very difficult to prove and Courts have great discretion in determining Cohabitation.
Hope this helps!
There was an excellent case out of the Ohio Fifth Appellate District, Delaware County, July 25, 2013, Laveer v. Laveer, 2013 Ohio 3294 that gave a great explanation of the meaning of cohabitation.
In brief, ex-husband was paying spousal support to ex-wife. Ex-husband claimed wife was cohabitating with boyfriend and he petitioned the Court to stop paying spousal support. The ex-husband alleged that ex-wife had been residing in the marital home with boyfriend since September of 2010 and that she had falsely testified at the time of the final hearing that she was not in a relationship with anyone. Ex-husband testified that he believed that boyfriend had moved into the house and was staying overnight. He indicated that boyfriend kept personal belongings there including shoes, clothing, a toothbrush, hair gel and a shaving kit. According to ex-husband, boyfriend's truck was constantly parked outside ex-wife's residence and was in the driveway many days in a row. He further testified that while boyfriend was occupying the former marital house, he was paying the utilities and the mortgage. Ex-husband further testified that ex-wife would sometimes take boyfriend to work and that boyfriend's employer told him that boyfriend lived there. Ex-husband was unaware if boyfriend owned his own residence and testified that he had seen boyfriend at the new residence that ex-wife had purchased and closed on in May or June of 2011.
Ex-husband agreed that he had paid a private investigative firm to conduct surveillance of ex-wife to determine if she was cohabitating with boyfriend. He testified that there were times when they found boyfriend's vehicle at ex-wife's residence and times when they did not. He admitted that there was one time when they found boyfriend's vehicle at boyfriend's home and times when he did not see boyfriend's truck when he drove by appellee's home.
Private investigator stated that over a roughly one month period of time, she only saw ex-wife and boyfriend together on two occasions and saw boyfriend at ex-wife's residence one time. She testified that she saw boyfriend's truck at his own address on the weekends and that when she saw the truck at ex-wifes's house during the week, ex-wife was driving.
At the hearing, boyfriend testified that he had stayed overnight
with appellee at both her new and previous residences. He testified that he
worked nights and usually slept during the day and that the number of days he
slept over at ex-wife's residence varied.
According to boyfriend, he spent a couple of days on average at ex-wife's residence
and did not spend more than 50% of his time there. He stated that he paid her
cell phone bill and for dinners when they went out about half the time and that
he had stayed at a hotel with ex-wife a couple of times. Boyfriend, when asked,
stated that ex-wife did not pay anything for him or pay him for working on her
new residence and that he had not purchased any items for her house. He
testified that he stayed at his apartment rent-free in exchange for helping his
roommate with his general contracting business. Boyfriend stated that he did not
have any bank or other accounts with ex-wife and did not have any credit cards
jointly with her. While he has clothing at
ex-wife's house, he testified that he generally takes the clothing home with
him when he leaves and that he had not spent more than two or three days with
ex-wife other than the last week or so when he was helping her move. Boyfriend testified that he paid for airline tickets when ex-wife's
family came from Arizona, but that he was paid back.
Well did the Court find that Ex-wife and Boyfriend was cohabitating????? The Court held there was no cohabitation. It is a well established principle in Ohio that the question of cohabitation is to be determined by the trier of fact [The Court].
The Court held [paraphrased]: Within the context of a divorce decree, "'cohabitation' contemplates a relationship that approximates, or is the functional equivalent of, a marriage." In determining whether cohabitation exists: "Many factors may be considered in deciding whether cohabitation exists in a particular set of facts. We note that 'cohabitation' describes an issue of lifestyle, not a housing arrangement. Further, when considering the evidence, the trial court should look to three principal factors. These factors are:
(1) an actual living together;
(2) of a sustained duration; and
(3) with shared expenses with respect to financing and day-to-day incidental expenses.'
In reviewing a case involving domestic violence, the Ohio Supreme Court set forth two primary factors to consider in determining cohabitation: "Having considered the above definitions of 'cohabitant' and 'family or household member' we conclude that the essential elements of 'cohabitation' are:
(1) sharing of familial or financial responsibilities and
(2) consortium.
Ohio Revised Code 2919.25(E)(2) and related statutes. Possible factors establishing shared familial or financial responsibilities might include provisions for shelter, food, clothing, utilities, and/or commingled assets. Factors that might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations. These factors are unique to each case and how much weight, if any, to give to each of these factors must be decided on a case-by-case basis by the Court."
This Court examined "whether or not a particular living arrangement rises to the level of 'cohabitation' we stated that "cohabitation" is a factual question to be initially determined
by the trial court.
Yarnell V. Yarnell, 2006 Ohio 3929, Fifth Appellate District, Delaware County, "A finding of cohabitation can have a direct impact on a spousal support award. Trial courts have the power to terminate or reduce an award of spousal support based on cohabitation. While R.C. 3105.18(C) lists a number of factors for a trial court to consider when determining spousal support, cohabitation is not expressly listed as a factor. However, R.C. 3105.18(C)(1)(n) states that any other factor that the trial court expressly finds to be relevant and equitable can be used to determine spousal support." We cite this decision only for the proposition that spousal support can be terminate or reduced if the economic circumstances of cohabitation should so warrant a reduction or termination.
In another case: The ordinary meaning of cohabitation as the acts of a man and woman living together, noting that isolated acts of sexual intercourse, unaccompanied by other aspects of living together, would not constitute cohabitation, but that, on the other hand, cohabitation can be based entirely upon acts of living together without sexual relations. Cohabitation requires some regularity of functioning as would a husband and wife, either sexually or otherwise. Cohabitation, then usually will be manifested by a man and woman living together in the same household and behaving as would a husband and wife, although there need not be an actual assertion of marriage.
So what does this all mean? Cohabitation comes down to three basic principles:
(1) an actual living together;
(2) of a sustained (long, regular) duration; and
(3) with shared expenses with respect to financing and day-to-day incidental expenses.
The 3rd principle seems to have the greatest weight with the courts. Two people can be living together on a regular basis (three to five times-a-week) for months on end but if they do not share living expenses and share day-to-day common incidental expenses then their is no cohabitation. Things that will help to prevent cohabitation is both people having their on residence, both people having their own mail address, checking accounts, and savings accounts. No joint accounts and most important of all: Do Not Share Expenses.
A person receiving spousal support is entitled to live a full life. They may have boyfriends/girlfriends, have sexual relations, may date and enjoy life. Cohabitation is very difficult to prove and Courts have great discretion in determining Cohabitation.
Hope this helps!
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