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Is there ever sufficient evidence of “continued cohabitation” to terminate alimony?

I occasionally get telephone calls from men whose ex-wife’s are receiving alimony but also appear to be living with a boyfriend.  They want to know if they can terminate alimony on that basis.  I am never optimistic.

In 2002, the South Carolina legislature amended S.C. Code § 20-3-150 to define the “continued cohabitation” necessary to terminate permanent periodic or rehabilitative alimony. As a result:

“continued cohabitation” means the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days.  The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement.

In the decade since this amendment, there have been seven reported South Carolina appellate decisions on this issue and none has found “continued cohabitation” sufficient to terminate alimony.  Biggins v. Burdette, 392 S.C. 241, 708 S.E.2d 237 (Ct. App. 2011); Eason v. Eason, 384 S.C. 473, 682 S.E.2d 804 (2009); Fiddie v. Fiddie, 384 S.C. 120, 681 S.E.2d 42 (Ct.App. 2009); Feldman v. Feldman, 380 S.C. 538, 670 S.E.2d 669 (Ct.App.2008); Semken v. Semken, 379 S.C. 71, 664 S.E.2d 493 (Ct.App.2008); Strickland v. Strickland, 375 S.C. 76, 650 S.E.2d 465 (2007); Degenhart v. Burriss, 360 S.C. 497, 602 S.E.2d 96 (Ct.App.2004).  Semken actually reversed the family court determination that there was continued cohabitation.  Today the Supreme Court dismissed its writ of certiorari in Biggins as improvidently granted.

There are numerous hurdles to proving ninety-day continuous cohabitation.  The ex-wife’s neighbors are rarely willing to testify against her.  Hiring a private investigator for a ninety-day period is prohibitively expensive.  Often a divorced wife and her boyfriend will maintain separate residences, even if they spend almost every night together, and these separate residences appear sufficient to defeat a finding of continued cohabitation.

Short of an ex-wife and her boyfriend sharing a lease without either keeping a separate residence and having both names on the utilities, or an admission by the ex-wife of continued cohabitation, I find it hard to conceive of the factual scenario in which I would likely obtain sufficient “proof” of  ninety-day “continued cohabitation” to terminate alimony.

If any readers have been parties or attorneys to a case in which the family court has terminated alimony based upon “continued cohabitation,” please post a comment describing the facts that led to this termination.  And to my alimony-paying readers who hope to terminate their obligation based on a claim on “continued cohabitation,” I wish you luck but wouldn’t hold out hope.

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