Does Cohabitation Terminate the Payment of Maintenance

Posted on January 8, 2008 by Daniel Clement

While I took a short break from writing this blog, the Appellate Divisions have been very active, having decided several matrimonial cases of interest. In the next couple of posts, I will try to catch-up and discuss some of these recently decided cases.

In Graev v. Graev, the First Department, sought to answer the question, when does an ex-spouse’s cohabitation with another adult result in a forfeiture of maintenance payments?

Domestic Relations Law § 248 allows the court to eliminate maintenance upon proof that the wife is habitually living with another man and holding herself out as his wife. What happens when the parties have an agreement that merely provides that maintenance is to stop when the recipient of the spousal maintenance cohabitates with someone for some period of time?

In Graev, the parties had a settlement agreement which provided that maintenance would terminate upon “the cohabitation of the Wife with an unrelated adult for a period of sixty (60) consecutive days.”

The Court in a 3-2 decision, certain to appealed to the New York’s highest court, the Court of Appeals, ruled that the merely living together is not cohabitation sufficient to terminate maintenance. In order to terminate the maintenance, the Court ruled there must an economic component to the cohabitation.


New York courts have uniformly construed the term "cohabitation," when used in agreements governing the modification of support obligations, as more than a romantic relationship or series of nights spent together. . . . However, New York case law interpreting similar clauses looks to the sharing of finances to determine whether parties are "cohabitating." This analysis makes sense, given the underlying question of whether the relationship at issue is the type of "changed circumstances" which would render a support obligation unjust

Two Justices, in dissent, criticized the majority for not giving the word “cohabitation” its plain dictionary meaning.

How and whether they pooled their resources, a factor significantly relied upon by the majority, is not determinative of cohabitation. It ill behooves any court to impose such a burden on the meaning of cohabitation, a fairly plain contract term. . . In no dictionary definition of the term is the sharing of expenses an essential component of cohabitation or even a characteristic of the relationship. "[C]ourts often look to the dictionary to determine the ordinary meaning of a disputed term" . . . Nor, as noted, is it the statutory standard for terminating maintenance as set forth in Domestic Relations Law § 248

Ultimately, the Court of Appeals will decide if merely living together is enough to constitute cohabitation sufficient to terminate the maintenance payments or whether there must be something more, i.e., a sharing of expenses. In the meantime, draftsmen of agreements need be particularly careful to specifically define all of the events that terminate the payment maintenance.


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Maintenance May Be Ordered Retroactive to the Commencement of the Divorce

Posted on November 13, 2007 by Daniel Clement

A divorce could easily stretch out for a year or more. For this reason, it is not uncommon for a spouse, dependent on the other, to make a motion for temporary maintenance (alimony or spousal support in New York) to be paid during the divorce.

Sometimes, for either strategic or economic reasons, no motion is made for temporary support. However, the failure to make the motion for pendente lite maintenance does not necessarily result in a windfall to the economically advantaged spouse. To the contrary, after trial, the advantaged spouse could be found to be arrears in maintenance and owe the other spouse a large sum of money.

As pointed out by the Appellate Division, First Division in King v. Geovanis:

"A final order of maintenance or child support shall be effective as of the date of the application therefor (Domestic Relations Law § 236[B][6][a]; [7][a])'" (Burns v Burns, 84 NY2d 369, 377 [1994]). The service of a summons with notice containing a request for maintenance or child support constitutes an application therefor (id.). Thus, since plaintiff requested maintenance and child support in her summons with notice, the filing of which commenced this action on May 14, 2003, the child support and maintenance awards should have been made retroactive to May 14, 2003.


In King v. Geovanis, maintenance was awarded retroactive to the commencement to the action for divorce, three years earlier.

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Domestic Partnerships and the Continuation of Maintenance

Posted on August 1, 2007 by Daniel Clement

Postings in two divorce and family law blogs highlight a growing conflict between the states on how to deal with a parties continuing obligation to pay alimony or maintenance, as it called in New York, if the former spouse enters into a domestic partnership.

To frame the issue, what happens if you are obligated to pay maintenance to your ex, but your ex rather than  re-marrying, enters into a domestic partnership? A number of states have enacted civil union or domestic partnership statutes which grant same sex couples some, but not all, of the rights and privileges of marriage. Maintenance or alimony typically terminates when the receiving spouse remarries.

The New Jersey Law Blog provides an excellent survey of the issue, contrasting a case from Virginia, which held as a result of the domestic partnership alimony should terminate, and one from Oregon, which held that the support obligation should continue.

The Florida Divorce Blog reports on a California decision in which the court ruled that a domestic partnership “is mere cohabitation and not a marriage.” Therefore, the alimony payments were ordered to continue.

To avoid uncertainty and litigation, this issue must be addressed in a settlement agreement at the time of divorce. If it is the parties’ intention that maintenance should terminate in the event of a cohabitation (same sex or opposite sex), the entry into marriage or a domestic partnership or civil union, the settlement agreement should make special provision. The failure to address t his issue exposes the parties to an unknown and presently unpredictable future determination.

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