Under North Carolina law, an obligation to pay alimony under a court order terminates if the party receiving support engages in cohabitation. “Cohabitation” is defined by statute as “the act of two adults dwelling habitually in a private, heterosexual relationship, even if the marriage is not solemnized by marriage or a private homosexual relationship. Cohabitation is evidenced by the voluntary assumption of those mutual rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations. ” N.C. Gen. Stat. 50-16.9 (2012).
The statute does not expressly articulate what behavior constitutes “cohabitation.” Bird v. Bird, 363 N.C. 774, 688 S.E.2d 420 (2010), indicates that evidence from an investigator that a man stayed in the ex-wife’s home for eleven consecutive nights, that the man’s vehicle was regularly observed at ex-wife’s home, that the man moved furniture and boxes into the ex-wife’s home and that the man’s residence looked as if no one lived there may be sufficient to show cohabitation. However, in a prior appellate case, Oakley v. Oakley, 165 N.C. App. 859, 863, 599 S.E.d2d 925, 928 (2004), the Court of Appeals held that a sexual relationship with occasional trips was insufficient to show cohabitation. North Carolina case law shows that the decision about whether to terminate alimony on the grounds of cohabitation depends largely upon the specific facts of each case the discretion of the trial court judge.
Proving cohabitation can be difficult. Usually it involves hiring a private investigator to gather evidence. Although there is additional expense involved when hiring an investigator, this evidence can be crucial. Keep in mind that your former spouse may alter his or her behavior if he or she suspects that you are trying to terminate support. In addition to evidence regarding overnights, evidence regarding the sharing of household duties and expenses may assist the court in making a determination to terminate support on the grounds of cohabitation. The more the parties are behaving like a married couple the stronger the case for cohabitation. An attorney can help you determine when you have “enough” evidence to move forward with a motion to terminate support. Similarly, if you are receiving support and have concerns that your support may be terminated for cohabitation, you should consult with an attorney familiar with these cases so that you protect your alimony rights.
Contributor: S. Nicole Taylor — S. Nicole Taylor, a Raleigh Family Law Attorney is a North Carolina Board Certified Family Law Specialist with the Raleigh, North Carolina Divorce Law Firm of Gailor, Hunt, Davis & Taylor P.L.L.C. For more information contact: Raleigh, North Carolina Family Law Firm, Gailor, Hunt, Davis & Taylor at 1101 Haynes Street, Suite 201, Raleigh, N.C. 27604. Tel: 919-670-2925 or go to www.ghfamilylaw.com.
The information contained in this article is intended as a general guide and is not to be used as legal advice by Gailor, Hunt, Davis & Taylor, PLLC. Whether or not you may be entitled to take action in regard to the information addressed in this article can only be determined after a thorough review of the facts and circumstances of your case. You may contact North Carolina Family Lawyers Gailor, Hunt, Davis & Taylor, PLLC, a full service divorce law firm, at 919-670-2925.
In our Podcast, Jaime Davis and her colleague Melissa Essick discuss when a spouse might be entitled to receive alimony, whether there is a formula for calculating the amount and duration, and how cohabitation might impact a person’s right to continue receiving spousal support.