Cohabitation and Alimony: How do I prove Cohabitation? (Part 2 of 2)
In Part 1, we discussed that proving cohabitation in North Carolina is not an easy task. There have been multiple North Carolina Court of Appeals cases where the dependent spouse and new flame had been dating for years, were blending finances, were vacationing together, and living together as much as five days a week; yet the Court found there was no cohabitation. The most important thing to keep in mind when trying to prove cohabitation to the court is your evidence.
When the Court reviews the evidence of cohabitation, it will engage in a two-part test. If the objective evidence of cohabitation does not conflict with other evidence, the court does not have to consider the subjective intent of the dependent spouse and new romantic interest. However, if there is conflicting objective evidence, then the Court must look to the subjective intent of the dependent spouse and new romantic interest. Bird v. Bird, 363 N.C. 774, 688 S.E.2d 420 (2010).
Examples of objective evidence of cohabitation includes externally verifiable phenomena, such as bank statements in both parties’ names, joint lease agreements, joint utility bills, cell phone records and text messages showing communications between the parties, emails between the parties alleged to be cohabiting, photographs of the parties together, or investigative reports detailing the movements and actions of the parties alleged to be cohabiting.
Most likely when the dependent spouse finds out that the supporting spouse is going to try to terminate the alimony by proving cohabitation, all signs of the cohabitation will mysteriously vanish. The dependent spouse and new beau will have a falling out, they will suddenly be maintaining separate residences, all bills will be separate, they won’t share financial accounts anymore, and all Facebook posts and text messages will disappear into thin air. This means that there could be conflicting objective evidence as soon as the cohabiting parties realize that the jig is up.
If there is a conflict between the objective evidence (such as a joint lease and then subsequently two individual leases) the Court must turn to the dependent spouse and the new beau’s subjective intent. This means the court will inquire as to the parties’ feelings, intentions, and perceptions surrounding the alleged cohabitation. It is likely that when the dependent spouse and new romantic interest are questioned about their intentions, the dialogue will follow the pattern of “We are in a relationship, but the relationship is not serious and committed enough to rise to the level of marriage.” This is why it is so important to acquire as much objective evidence as possible of the cohabitation.
One last point to leave you with is that once alimony is ordered, you must continue to pay it until the Court enters an order terminating the award. Even if you have rock solid evidence proving cohabitation by the dependent spouse, without filing a motion to terminate the award you are responsible for continuing to pay alimony. If you stop paying the alimony award without an order terminating alimony you can be held in contempt. As always, when in doubt follow the court order and get the advice of an attorney who specializes in family law.
Part 1 | Part 2
by Jennifer A. Crissman, Attorney, Woodruff Family Law Group