Terminating Spousal Support Due To Cohabitation

Spousal support, sometimes referred to as alimony, is ordered on a regular basis in North Dakota divorces. A court decides whether or not to order a spousal support obligation, and the amount of the obligation, by applying the facts of a case to certain factors referred to as the “Ruff-Fischer guidelines.” If these factors weigh in favor of a spousal support payment, the court must also determine whether or not to make the award permanent or of a shorter duration. An award of shorter duration is commonly referred to as “rehabilitative” spousal support.

For a very long time, North Dakota did not have a statute (law) that addressed what should happen to a spousal support obligation if the receiving party cohabitated with another individual in a relationship analogous to a marriage. During those years in which there was no formal cohabitation statute, the “law of the land” was that cohabitation could not be the sole basis for the termination of a spousal support award, unless that was an express condition laid out within the court’s order.

That changed in 2015 when the North Dakota legislature amended its spousal support statute to add subsections 2, 3, and 4 found below:

N.D.C.C. § 14-05-24.1 Spousal Support

Taking into consideration the circumstances of the parties, the court may require one party to pay spousal support to the other party for a limited period of time in accordance with this section. The court may modify its spousal support orders.
Unless otherwise agreed to by the parties in writing, spousal support is terminated upon the remarriage of the spouse receiving support. Immediately upon remarriage, the spouse receiving support shall provide notice of the remarriage to the payor spouse at the last known address of the payor spouse.
Unless otherwise agreed to by the parties in writing, upon an order of the court based upon a preponderance of the evidence that the spouse receiving support has been habitually cohabiting with another individual in a relationship analogous to a marriage for one year or more, the court shall terminate spousal support.
Subsections 2 and 3 do not apply to rehabilitative spousal support.

Now, if a person obligated to pay spousal support can prove their ex-spouse has been habitually cohabitating with another individual for more than one year, the court must terminate the spousal support obligation. Sounds easy, right?

Wrong. First, there is a proof problem. Getting someone who might have to forfeit spousal support to admit they are in a relationship analogous to a marriage can be difficult. As a result, the party often must use “circumstantial” evidence to convince a judge the relationship is not simply that of roommates. Things such as deeds, bank accounts, and utility bills can be used to this end.

Second, this statute may not even apply to your case if a judge determines the award is “rehabilitative.” Is anything other than permanent spousal support “rehabilitative”? If you pay your ex until his or her retirement, is that still considered “rehabilitative”? These are good questions that have not yet been fully addressed in North Dakota, but which will have to come to fruition soon.

Third, whether you were divorced prior to 2015 or after may have a huge impact on how a court decides your case. Recently, the Supreme Court of North Dakota determined that in a divorce granted prior to 2015 a spousal support obligation could not be terminated because the parties had agreed it would only terminate upon certain, other, circumstances. Supreme Court Justice Crother’s concurrence to that opinion states that if the exact same judgment had been entered after the effective date of the statute cited above, the court would have been required to reach exactly the opposite result.

Conclusion

Whether or not your spousal support obligation can be terminated by reason of cohabitation depends on a multitude of factors. If you are interested in whether or not your spousal support can be terminated for this reason, you should talk with an attorney experienced in this area of the law.

Any of the experienced family law attorneys here at SW&L are happy to discuss the issue of spousal support with you. You can reach the Family Law Team at 701-297-2890. Or you can email us through the contact form below.

The information contained in this article and on this website is for informational purposes only and not for the purpose of providing legal advice.

Disclaimer