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Ask Carolyn: Is My Ex Cohabiting? Will that Terminate My Alimony?

Carolyn Woodruff, J.D., C.P.A, C.V.A.

Dear Carolyn,

My ex is receiving alimony, which I obviously do not want to pay.  She has a son, by another marriage, who is a heroin addict.  My ex-wife began dating shortly after our divorce, and she seems quite entrenched with this guy.  He stays over at my ex’s on some weekends, but he does still have his own apartment.  I know he has a key to my ex’s house, and I know he stayed there four weeks when the heroin addict was in rehabilitation.   My court order for alimony says that the alimony terminates upon cohabitation or remarriage.  Will the court terminate my alimony?  Is my ex cohabiting?

                – Sorry to be paying alimony

Dear Sorry,

This is a common societal issue in our current world.  Luckily, our legislature has defined cohabitation for purposes of alimony as follows:  “cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship.  Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.” (North Carolina General Statutes 50-16.9(b) in relevant part).

Unfortunately for you, I doubt that the court would find that your ex and her boyfriend are living together “continuously” and “habitually.” From your facts, the four weeks is really the longest continuous period and there were some extenuating circumstances, perhaps given the heroin addict. (Although it is not really obvious why the boyfriend would move in while the son was away for treatment, they also maintain a separate residence, which is a factor that goes against your position).

Generally, the law suggests that to cohabitate one must be acting like he/she is married, without the formal paperwork (“voluntary assumption of those marital rights, duties, and obligations which are usually manifested by married people”). Note that a sexual relationship is mentioned in the statute, but sex alone does not equate to cohabitation.  Joint bank accounts, sharing bills, and taking care of each other would certainly be “evidence” of possible cohabitation.

A typical cohabitation situation that would likely present a winning case is a situation where the ex and her boyfriend were maintaining only one dwelling, living together full-time, and sharing bills.

I would suggest you continue to monitor the situation. See if the relationship continues to develop into either cohabitation or remarriage.  Best of luck to you!


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Note that the answers in “Ask Carolyn” are intended to provide general legal information, and the answers are not specific legal advice for your situation.  The column also uses hypothetical questions.  A subtle fact in your unique case may determine the legal advice you need in your unique case.  Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by “Ask Carolyn.”

This blog is an excerpt from Ask Carolyn, available on kindle.