Will an alimony recipient's cohabitation with another result in the termination of alimony?
With the implementation of new alimony legislation in Massachusetts, many are left wondering whether an alimony obligor/payor may immediately seek to terminate his/her existing alimony obligation on the basis that their former spouse (the alimony recipient) is living with another (cohabitating).
While Section 49(d) of the Alimony Reform Act of 2011 (the "Act") provides for the suspension, reduction or termination of alimony upon a showing that the alimony recipient is cohabitating with another (or sharing a common household) for at least three months, Section 4 of the Act states that Section 49 "shall apply prospectively, such that alimony judgments entered before March 1, 2012 shall terminate only under such judgments, under a subsequent modification or as otherwise provided for in this Act." The application of these provisions - which arguably may be considered contradictory provisions--is now left to our Courts.
In a recent case we initiated on behalf of our client in the Norfolk County Probate and Family Court, a former husband/obligor filed a Complaint for Modification to terminate his alimony obligation to his former wife based, in part, upon his former wife's cohabitation with another adult male for a period in excess of three months. The former wife moved to dismiss the husband's Complaint, arguing that the cohabitation clause of the Alimony Reform Act could only be applied prospectively, such that the former husband's attempt to seek a termination based on cohabitation is barred.
The Norfolk Court declined to agree with the wife, denied the motion to dismiss, and interpreted the Act to provide both a prospective and retroactive application of the Act's cohabitation clause. In its decision, the Court reasoned that the existence of a comma between the phrases "under such judgments" and "under a subsequent modification" was used to separate items on a list, or three possibilities to terminate alimony judgments. The Court also found that the Wife's interpretation of the cohabitation clause as being merely prospective was inconsistent with another section of the Act, Section 5, which provides time limits for the future modification actions based upon durational time limits. Time will tell whether or not other Courts across the Commonwealth will adopt a similar interpretation of these provisions.