Cohabitation as an Alimony Defense

Orren v. Orren, 800 S.E.2d 472, 253 N.C.App. 480 (N.C. App. 2017)

We have previously written about what cohabitation means in the alimony and postseparation support context. Essentially, according to North Carolina law, it is an appropriate termination point for alimony and postseparation support. But in some cases, a party that could potentially bring a claim for spousal support may have already begun to cohabitate. Can the potential supporting party claim cohabitation as a defense?

• Facts: Plaintiff and Defendant divorced. Defendant filed a counterclaim for alimony in 2009. In 2012, an alimony consent order was drafted and sent it to the Clerk’s office. The clerks never received the order, presumably lost in the mail. Then in 2015, Plaintiff sought leave from the court to assert the defense of cohabitation in response to the alimony counterclaim. The court, now learning that the original consent order was never entered, reopened evidence and basically conducted a trial on alimony. Plaintiff was not allowed to assert his cohabitation defense. Plaintiff appealed.

 

• Issue: Did the trial court err by not allowing Plaintiff to assert his defense?

 

• Holding:

 

• Rationale: The trial court was wrong on the law. The court thought that cohabitation was not a defense to an alimony claim. A previously decided case squarely held that “cohabitation is a defense to an initial award of alimony.” This Court held the same. It made further sense, in light of the trial court’s obligation to consider all relevant factors pursuant to statute. An award of alimony that is subject to immediate termination was a relevant factor, and the trial court failed to consider it during the making of the award.

 

• Lessons and Observations:
  1. This one seems simple. If you are in an alimony case, evidence of cohabitation will serve as a defense against the awarding of alimony, even if it is the initial alimony determination.
  2. This opinion may seem only half-baked. The facts show that the parties all consented to an award of alimony. But for the error in transit, the parties would have been bound by that alimony order from 2012 to 2015. That is three years of alimony. It is unclear when Defendant began cohabitating. But it is also unclear if Plaintiff had been dutifully paying alimony since the consent order and only sought to terminate it when he found out about cohabitation. This second scenario is vastly more complex.