Cohabitation or Just Friends With Benefits[1]
Presented by S. Scott Haynes, Esq.
S. Scott Haynes received a B.A. from Cedarville College and a Juris Doctorate from Capital University Law School. Mr. Haynes is an Ohio State Bar Association Board Certified Family Law Specialist, a Fellow in the American Academy of Matrimonial Lawyers and has an AV® Preeminent™ Peer Review Rating by Martindale-Hubbell for Family Law. Mr. Haynes sits on the Advisory Board of and is a frequent contributor to The Domestic Relations Journal of Ohio.
“She is living with another guy! Why should I still pay spousal support?” “He can’t control me anymore! I can live with anyone I want!”
We have all heard these reprises. What impact does cohabitation have on spousal support? Or perhaps a better question is, “What impact should cohabitation have on spousal support?” The answer to that question, much like beauty, is in the eye of the beholder. Payors say cohabitation should end support. Recipients say it should not. Courts say both, “Yes, it does” and, “No, it doesn’t”, and both are right. It depends on the parsing of what “cohabitation” means. So, how do we help our clients as we negotiate the language in a decree and how do we help interpret and advise on post-decree matters? Below is a long legal safari of hunting and finding cohabitation.
Cohabitation is a factor, like it or not.
R.C. §3105.18(C)(1) lists multiple factors a trial court is required to consider when determining whether a spousal support award is "appropriate and reasonable.” Cohabitation is not on that enumerated list. “But the list of factors is non-exhaustive, and the trial court is permitted to consider any other factor it finds to be "relevant and equitable"[2] in its spousal support determination; therefore, the matter of cohabitation, though not an express statutory factor, may nonetheless be considered.”[3] Such language abounds in decisions throughout Ohio Courts of Appeal.
But how big a factor - automatic termination?
The only statutory factor that will automatically terminate spousal support is the death of either party, unless the order expressly provides otherwise.[4] On June 23, 1976, the Supreme Court of Ohio stated, “Post-divorce unchastity upon the part of the former wife is not grounds for automatically terminating the alimony award but may be considered in a subsequent modification proceeding insofar as it is relevant to the issues of continued need for such alimony and the amount.”[5] Five years later, the Supreme Court of Ohio again opined that “cohabitation with a male should not result in the automatic termination of support, but rather, is only a factor properly considered in an award modification proceeding.”[6]
Wrestling with “What is cohabitation? A definition in transition.
It is a factor, albeit not an automatic one. This begs the question then: What is meant by cohabitation? A criminal case has historically been used as the starting point for defining cohabitation in the context of spousal support. In reviewing a case involving domestic violence, the Supreme Court of Ohio 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. R.C. 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 trier of fact.[7]
The “living together” factor.
After Williams, several appellate courts have further expanded on this definition as they have wrestled with determining whether cohabitation exists in a certain situation. The Ninth District Court of Appeals, typical of many others, has stated, "Courts typically look to three factors to determine whether a former spouse is cohabiting: (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.”[8] In that case, it was admitted there was intimate sexual contact. The period of time in question was about eight months. But at issue was whether the recipient actually lived with her boyfriend. These cases are decided on a case-by-case basis and are very fact specific. In Guggenbiller, the trial court parsed hours in finding cohabitation. “The boyfriend testified that Ms. Guggenbiller is at his house around 17 hours every day, minus the time she is at school, and that she manages his house and runs errands for him while he is at work.” In the end, the trial court found cohabitation and that finding was affirmed on appeal. But this case is typical of the exact, even hourly, detail into which the court will, and counsel should, probe into in examining the existence of cohabitation.
The “sharing expenses” factor.
Courts have employed descriptive language in an attempt to illustrate that the living together factor means more than having a roommate. One court noted that “'cohabitation' describes an issue of lifestyle, not a housing arrangement.”[9] Another noted, “Within the context of a divorce decree 'cohabitation' contemplates a relationship that approximates, or is the functional equivalent of, a marriage."[10] This has led to many other courts to focus on the sharing of familial or financial responsibilities or sharing expenses factor.
This factor has some statutory guidance. R.C. §3105.18(E), relates specifically to a modification of support which could be up to and including termination. The first step is determining jurisdiction. Jurisdiction is established where the language of the divorce decree reserves jurisdiction to modify a spousal support obligation. Without such a reservation, there is no authority to modify. The second step is to determine whether there has been a change in circumstances of either party, which is defined as:
(F)(1) For purposes of divisions (D) and (E) of this section and subject to division (F)(2) of this section, a change in the circumstances of a party includes, but is not limited to, any increase or involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses, or other changed circumstances so long as both of the following apply:
(a) The change in circumstances is substantial and makes the existing award no longer reasonable and appropriate.
(b) The change in circumstances was not taken into account by the parties or the court as a basis for the existing award when it was established or last modified, whether or not the change in circumstances was foreseeable.[11] (Emphasis added.)
The statute’s direction to determine a “substantial” change of circumstances demands heightened scrutiny of the specific facts in each case. The rigorous factual examination in the living together factor is equaled or even surpassed then in the factual examination in the sharing expenses factor. And the difficulty of the payor might have in proving shared familial or financial responsibilities is probably higher. This need for detail and the difficulty in getting it was pointedly expressed thusly:
The problem is that the standard of proof is providing 'day-to-day' expenses. In other words, other than a few times over three years where she has used his credit, there is a lack of proof that he has paid her fuel bill, rent/mortgage, insurance, or other regular expenses, or visa-versa. There were no witnesses who testified that the parties came-in and obtained a loan together, talked about a major purchase together, or any other comingling of their expenses and income. The Court is mindful that the proof may have been available in [purported cohabiter] Mr. Hahn's records and that obtaining those records and the cost of reviewing them was prohibitive. But, the Court can only decide the matter based on the proof presented and that proof creates a suspicion of commingling, but a suspicion does not meet the movant's burden of proof.[12]
In Bickham, the agreed Decree of Divorce required spousal support until the death of either party, Ms. Bickham’s “remarriage or cohabitation, or the expiration of 102 months.” Mr. Bickham, the payor, moved to terminate spousal support based upon Ms. Bickham’s cohabitation with the purported cohabiter, Mr. Hahn. In that case, the microscope was at full magnification in examining the expenses of the recipient and Mr. Hahn. “Although Mr. Hahn admitted to using appellee's utilities and cable, he insisted that he did not pay for anything and was not an extra burden on the utilities. T. at 205, 217-218. At one point, Mr. Hahn took the absurd position that he did not even use toilet paper. T. at 184.”
In addition, there was a detailed examination of all dollars that went into Ms. Bickham’s bank account and the origin of each deposit. This inquiry ultimately saved Mr. Bickham’s goal to prove cohabitation and then terminate spousal support. Ms. Bickham could not explain the deficit in her income versus expenses nor could she explain how her checking account deposits were some $30,000 in excess of her income. The appellate court in reversing the trial court stated, “Proof of shared expenses does not have to be by direct evidence alone, but can be established by circumstantial evidence. In this case, the direct evidence of the unexplained funds leads to the logical inference that [Ms. Bickham] is receiving funds from Mr. Hahn.”
Then along comes State v. McGlothan.
As stated above, Williams has long been cited as defining cohabitation to include a finding of shared familial or financial responsibilities. In case after case, several discussed hereinabove, this factor has been the central element in finding cohabitation. However, On January 14, 2014, the Supreme Court of Ohio issued a merit decision in State v. McGlothan, Slip Opinion No. 2014-Ohio-85, that has muddied the water. The defendant in that case was convicted of domestic violence. The appellate court reversed the trial court holding that the state had failed to prove the victim was a family or household member and cohabitation pursuant to R.C. §2919.25. The court opined,
The court of appeals misread our decision in Williams as supporting the proposition that evidence of shared living expenses is necessary to establish cohabitation. Williams is factually distinguishable from this case, because there we addressed living arrangements between the victim and the defendant that were markedly different from the circumstances here. In Williams, 79 Ohio St.3d at 460, 683 N.E.2d 1126, the victim testified that she and the defendant "were going together" but that they did not live together. The victim's testimony that for a few months she stayed more nights at Williams's place than at her own further illustrates that they did not share a residence but rather that each had a separate residence. See id. Thus, in order to prove cohabitation when the victim and the defendant do not share the same residence, evidence of shared financial or familial responsibilities and consortium is required. See id at 463-465. (Emphasis added).[13]
Although the majority in McGlothan tries to distinguish these facts from the facts in Williams, Justice Lanzinger is unconvinced. In her dissent she states,
In addition, without expressly acknowledging the fact, the majority overrules a portion of State v. Williams, 79 Ohio St.3d 459, 683 N.E.2d 1126 (1997). It now decides that merely living in the same residence will satisfy the element of cohabitation for the domestic-violence statute, stating that "[b]ecause the state demonstrated that the defendant was the victim's boyfriend and that they had lived together for about a year, the state had no obligation to demonstrate the sharing of familial or financial responsibilities and consortium to prove cohabitation in this case." Majority opinion, ¶ 15. (Emphasis added).
The ever winding road of defining and then proving cohabitation just got a little curvier.
How we help negotiating and interpreting.
First and foremost, advocates may need to pay extra attention to the language used in the initial decree. The standard “spousal support shall terminate upon the death of either party, or recipient’s remarriage or cohabitation with a person of the opposite sex” perhaps does not do enough to define what facts will prompt a termination of spousal support. It is advisable to attempt to negotiate language that defines cohabitation.[14] For example, defining the duration of time the recipient can live with someone before it is considered cohabitation. Or define when the time starts to run in a situation where the recipient will need additional time to secure housing or establish some savings for financial security. Or, at the opposite extreme do not include cohabitation language at all.[15] When reviewing a matter with a party for possible post-decree modification or termination, being aware of the need for microscopic inspection of the living arrangements and finances cannot be understated. Nor can the difficulty in proving certain facts. Litigants need to be advised that there are no “open and shut” cases in the legal safari of hunting and finding cohabitation.
[1] This article, originally titled “Hunting for Cohabitation in the Spousal Support Jungle”, appeared in the Domestic Relations Journal of Ohio March/April 2014 issue. Used by permission of Thomson Reuters.