I recently wrote about the revisions to the New York maintenance (alimony) law which was passed in September 2015. It became effective for the temporary maintenance provisions on October 25, 2015 and for durational or permanent maintenance (the maintenance ordered for some period of time after the divorce if there is any) it will be effective as of the end of January 2016. This article will be about the narrow issue if maintenance should exist when a spouse/former spouse is living with a new romantic partner. The law about this situation is contained in New York Domestic Relations Law Section 248 (DRL 248) which also received some changes in the recent law update. It seems, mostly, that section of the law remains intact. The language, though, was updated to be more gender neutral and reflective of our modern times.
The current old law, which is effective only until January 23, 2016, states that when the wife remarries the court must terminate any support payments (not child support) that are to be made by the Husband for the Wife. The antiquated language here I think is apparent – “Husband” and “Wife”. While courts have in recent years read gender neutrality into these terms, those terms are changed in the new law to “payor” and “payee”, thus recognizing that either spouse might need to pay maintenance. The current/old law goes on to say that the husband can make a motion, and the court in its discretion may grant the motion, for termination of support payments for the wife if the husband can prove that the wife is habitually living with another man, and holding herself out as his wife, even though they are not married. The updated law, again, modernizes the terms to “payor”, “payee” and “spouse” (which is also reflective of the fact that same sex couples can now marry).
Pursuant to agreement, whether a pre-nuptial, separation agreement, post-nuptial agreement or stipulation of settlement of divorce, the parties are free to alter the default law which is contained in the aforementioned DRL 248. Careful drafting of agreements is important to have the intended effect, as using the term “cohabitating” alone has been found by the New York Court of Appeals to be vague. The court pointed out that cohabitation might mean an intimate sexual relationship, or it could mean living together and sharing economic expenses or otherwise. Agreements can spell out, for example, that if someone lives with an unrelated member of the opposite sex, for 60 continuous days, that this will be deemed a circumstance under which maintenance terminates for cohabitation. Or the agreement might state that living with an intimate partner, for three or more months, shall be a circumstance to allow for the termination of maintenance payments. The language can then go on to define what is meant by “intimate” partner. The more detailed, the easier an agreement is to enforce.
It is important to note that the default law, absent an agreement to the contrary, has two important elements to it. Not only must a couple be habitually living together, they also must hold themselves out as husband and wife. So just living together, alone, has been held by courts not to be enough. The payee spouse or ex-spouse needs to also “hold themselves out” as married to the new partner. Arguments can be made about the habitually living together element. Courts may inquire as to whether the live in person was something other than a house mate or roommate and whether sleeping over from time to time is habitual cohabitation or not, among other inquiries. As for holding themselves out as married, statements by one spouse that she is her new boyfriend’s wife has been found to qualify. On the other hand, living with someone for years and going to their family activities, without ever otherwise giving the impression that the couple was actually married, has been held not to qualify as holding oneself out as married.
Careful drafting of agreements, as mentioned, can eliminate future debates over whether maintenance should continue. Creative solutions, as well, in order to discourage people from avoiding new relationships could be a good idea too. For example, a provision that maintenance would only be reduced (and not terminated) upon living with a new partner for a specified period of time could be a fair solution and allow for people to live more truly. This might be a win for both sides.
Of course each case and situation is different. Please see our other blog entries and website for more information about various matrimonial and family law topics. Feel free to contact us as well to discuss your free initial consultation. It will be our pleasure to discuss it with you.