Cohabitation and Maintenance

protecting finances during a divorce

We receive a number of inquiries every month about the impact of cohabitation on a maintenance award, and we thought we would take a moment and provide some background.

A trial court orders maintenance after considering a variety of factors, but first and foremost the trial court must find that a spouse lacks the ability, through property awarded and current or future employment, to meet his or her reasonable needs. If the trial court finds that the spouse cannot meet monthly expenses without assistance, the trial court will order maintenance to help close that gap. Maintenance is not meant as a permanent state of affairs; rather, our courts impose a duty on a former spouse to pursue self-sufficiency, and the failure to do so could result in a reduction in maintenance through a motion to modify.

By statute, maintenance automatically terminates upon the death or remarriage of the recipient spouse.

But what happens if, instead of remarrying, a spouse begins living with a new partner in a way that looks like marriage?

In this situation, our courts tend to take a hard look at the facts. If it appears that a spouse has chosen not to remarry in order to continue to receive maintenance, the court could find that basis a reason to terminate maintenance. However, even if the spouse does not appear to be intending to marry, the court could still reduce maintenance if someone else – the cohabiting partner – is paying some or all of her monthly expenses.

Recently, in Hughes v. Hughes, the Missouri Court of Appeals examined this issue. Wife began dating a new man after the divorce; two years later, she moved into this man’s home and has continuously resided there for several years. Despite the length of the cohabitation and the relationship, both the wife and her partner stated they have no intention to marry though they both hope their relationship continues. Husband filed a motion to modify to terminate or reduce maintenance. Based on this evidence alone, the appellate court would not terminate maintenance because wife left open the possibility of ending the relationship and leaving herself in need in the future. However, the appellate court did proceed to examine whether the partner contributed enough to wife’s living expenses to reduce maintenance. Consequently, the appellate court did not modify maintenance at all.

For those who pay maintenance and feel their former spouse has cohabited long enough to resemble a marriage, the Hughes case shows that to secure termination the party paying maintenance must produce evidence of intent to marry or some other indication of permanence – perhaps testimony from a witness that the parties do intend to remain together or will not marry in order to keep receiving maintenance. And if the party paying maintenance wants a reduction, that party will need to show that the cohabitant pays a significant portion of regular expenses maintenance normally covers.

If you have questions about maintenance and cohabitation, contact us – we can help.