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, Missouri 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 child and/or a friend?
In this situation, our courts tend to take a hard look at the facts. Is the child and/or friend paying some or all of the receiving spouse’s monthly expenses? If so, to what extent?
In Davis vs. Davis, the Missouri Court of Appeals examined this issue. Section 452.370.1 states that the court “shall consider all financial resources of both parties, including the extent to which the reasonable expenses of either party are, or should be, shared by a spouse or other person with whom he or she cohabits.” In Davis, the former Wife was awarded the marital home at divorce. At the time of the Motion to Modify, Wife’s son resided with her in the home but was not contributing anything to the payment of Wife’s reasonable expenses. The Court of Appeals found that there was no justification why son should not pay for a share of Wife’s reasonable expenses. Additionally, Wife had a friend who was also residing in the marital home but not paying for a share of the reasonable expenses. The Court of Appeals believed that the trial court ignored “other costs” incurred by living in the home such as utilities. Also, the Court of Appeals found it important that the friend received his mail at the home, was on Wife’s cell phone plan, and that his car was registered using the marital home address. Consequently, the appellate court remanded the case back to the trial court to determine the appropriate modification of the Husband’s maintenance obligation.
For those who pay maintenance and feel their former spouse is cohabitating, the Davis case shows that cohabitation is not limited to a romantic relationship that resembles marriage. Rather, cohabitation in a non-romantic relationship that does not resemble a marriage can justify a reduction or termination of maintenance. For that to occur, the party paying maintenance must produce evidence that the cohabitant pays or should pay a significant portion of regular expenses maintenance normally covers.
Should you need the advice of a divorce and family law attorney or have questions or concerns about your situation, know that we are here to help and discuss those issues with you.