Is the Fact Your “Ex” is Cohabitating Grounds for Modifying Your Spousal Maintenance Obligation?

Cohabitation is increasingly popular particularly for adults 50 years and older.   In 2016, this group had over 4 million cohabitators, a near quadrupling of the number in 2000.  Can cohabitation be a basis for modifying or even terminating a spousal maintenance obligation?  In short, it can, but cohabitation, alone is not enough to modify maintenance and requires the court to consider other factors to reach its determination.  This is where the skills and family law experience of attorney Kathleen M. Newman of the DeWitt LLP law firm can make a big difference whether you are seeking to modify your maintenance or to protect it against modification. 

To begin with, what is “cohabitation” in the context of seeking a modification of maintenance?  Interestingly, “cohabitation is not statutorily defined [and] is generally viewed as people “living together . . . with the suggestion of sexual relations.”   Proving that an ex-spouse has a significant other living with them can be challenging and often depends on showing that the significant other receives mail at the ex-spouse’s address or has a government issued ID using your ex’s address.  These fact-specific items inherently require resourceful lawyering.  

If cohabitation is established, the court, in deciding whether maintenance should be modified, considers:

1. Whether the ex-spouse receiving spousal maintenance would marry the cohabitant but for the maintenance award;
2. The economic benefit the ex-spouse derives from the cohabitation;
3. The length of the cohabitation and the likely future duration of the cohabitation; and
4. The economic impact on the ex-spouse if maintenance is modified and the cohabitation ends.

Additionally, cohabitation cannot be used as the basis for modification within one year of the divorce decree, except in cases of extreme hardship. 

To date, courts applying the above test have been reluctant to modify maintenance based on cohabitation.  Proving the economic benefit to the ex-spouse is difficult and judges are concerned that modifying or terminating maintenance can financially imperil the ex-spouse if the cohabitation ends..  Also, the required duration of cohabitation is still unclear, and is yet another legal obstacle for obtaining modification or termination. 

Take-away:  Cohabitation can be a basis for modifying maintenance.   However, it is a murky area of family law with numerous unanswered questions.  If you seek to bring a modification motion or need to defend against a motion to modify spousal maintenance, it is important you have the skills and experience of attorney Kathleen M. Newman of the DeWitt LLP law firm on your side.  Call us today for a consultation.

Sources:

Minn. Stats. § 518.552.

Sinda v. Sinda, 949 N.W.2d 170 (Minn. Ct. App. 2020)

“Marriage, Cohabitation, and Divorce in Later Life,” online publication by U.S. National Library of Medicine/National Institutes of Health (September 13, 2017).