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

Posted Wednesday, January 30th, 2013 by Gregory Forman
Filed under Alimony/Spousal Support, Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

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.

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

  1. Jason Luck says:

    I watched the oral arguments in Biggins. Judging by the questions by the Justices, I am not surprised cert was dismissed.

    1. What questions led you to this conclusion that Mr. Biggins would not prevail?

  2. I successfully tried and argued this issue in 2006 – Dowd v. Dowd is an Unpublished Opinion 2006-UP-396 – I represented Husband – at trial Court reduced alimony to “0” and required Wife to reimburse Husband for alimony payments since date of filing. My client had let the situation ride until his 3 daughters (he had custody) were adults. Then he reluctantly brought this lawsuit. At trial ex-Wife argued family court erred in reducing alimony to zero because she was not cohabitating in romantic relationshiop AT THE TIME the underlying action was filed. Wife and lover had been in a relationship for 15 years; Wife acted as mother to lover’s adopted child to the extent that daughter actually believed Wife was her mother; lover had a stroke – bad one which confined him to wheelchair and required round the clock care so Wife moved in with lover as his “caregiver”. Daughters went to visit Wife at lovers’ home, daughters, neighbors, teachers, etc testified at trial – evidence more than sufficient to support cohabitation for whatever reason. I would be happy to take this issue on again — any takers?

  3. I have been successful terminating alimony in the one case I tried. It was a pre-statute case, but the language of the agreement was consistent with the statute. I had a PI on the case for 2 weeks straight at the outset and then randomly, several times per week, then a straight week followed by random weeks ending with 2 straight weeks. The PI also checked garbage can takeout, newspaper and mail at the boyfriend’s house. The ex-wife and her boyfriend had significant credibility issues at trial. I also had to show that the relationship was “tantamount to a marriage” with joint bank accounts, transfers of money between accounts and managing of finances as if married, etc. The Wife appealed but married the guy and dropped the appeal. These are hard, expensive cases.

  4. Lost. Hathcock v. Hathcock, Unpublished Opinion No. 2004-UP-538
    Submitted October 1, 2004 – Filed October 21, 2004. I was not the trial attorney but it still stung.

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