• Cohabitation Trend Doesn’t Mean Exes Paying Maintenance Are off the Hook
  • October 8, 2012 | Author: Brianne M. Carbonaro
  • Law Firm: Tully Rinckey, PLLC - Your Lawyers for Life - Syracuse Office
  • Cohabitation is increasingly the living-arrangement-of-choice for unmarried couples across the county. Since the mid-1990s, the ranks of cohabitating couples between 30 and 44 years of age have doubled, according to a recent Pew Research Center study. And in Onondaga County, between 2007 and 2010, the number of non-family households with unmarried partners rose by 10 percent to 7,956, according to U.S. Census Bureau estimates.

    For anyone who is divorced and is required to pay spousal maintenance to an ex-spouse who is living with an unmarried partner, this cohabitation trend may be troublesome, if not infuriating. Some exes resent the fact that they have to pay maintenance to a spouse while he or she lives with another partner. But payors must be careful not to stop making maintenance payments without a court order terminating this responsibility - under the belief that the ex-spouse’s continued cohabitation justifies such actions.

    Under New York Domestic Relations Law § 248, courts can modify or annul maintenance orders after receiving an application for such action that shows proof that “the wife is habitually living with another man and holding herself out as his wife, although not married to such man.”

    What many payors often have trouble understanding is that “habitually living with a man” is not the same thing as “holding herself out as his wife.” The New York State Court of Appeals made this point in Northrup v. Northrup (1978), in which it found an ex-spouse’s continued cohabitation with a man for six months alone did not merit the modification of maintenance requirements. The court noted that for an ex-spouse to hold herself out as someone else’s wife, she would have to do such things as use the cohabitating partner’s surname on a joint checking account or have herself listed in a phonebook under his surname. “That individuals may conform to the life style of a married couple is not enough,” the court said.

    Divorcees receiving spousal support have to be careful that any agreements incorporated into or merged with the divorce judgment did not alter this two-prong test for maintenance modifications. The case of Mastrocovo v. Capizzi (2011), for example, involved an ex-husband who stopped paying spousal support because his ex-wife was cohabitating with another man. Usually, such cohabitation alone would not satisfy the two-prong test, but the New York Supreme Court, Appellate Division, Fourth Department granted the relief sought by the payor. The property agreement that was incorporated into the couple’s divorce judgment outlined the ex-husband’s maintenance obligations and said this obligation could be terminated upon the ex-wife’s “continued cohabitation” with a man. The court noted “there is no requirement therein that plaintiff hold herself out as the other man’s wife.”

    Central New Yorkers who do not believe they should be paying maintenance or who believe maintenance payments have been wrongfully withheld from them should immediately contact a family and matrimonial law attorney.