Proving cohabitation is challenging, especially when you are dealing with a deceptive ex-spouse and a co-conspiring paramour, who are both motivated by the desire to continue to fleece you of your hard-earned money. While the law in many states provides for termination or reduction of alimony when the recipient ex-spouse is cohabitating with a member of the opposite sex “in the manner of husband and wife, mutually assuming those rights and duties usually attendant upon the marriage relationship,” the unfortunate reality is that what demonstrates “cohabitation” is ill-defined.
Typically, cohabitation is shown by evidence of financial, social and sexual interdependence. However, courts have recognized that cohabitation is more than merely a common residence or a sexual relationship. Cohabitation connotes mutual assumption of the duties and obligations associated with marriage. This can be shown by a sharing of the same residence, as well as things such as shared assets or common bank accounts, joint contribution to household expenses, recognition of the relationship by the community, and other co-supportive contributions.
This gray definition of cohabitation leaves payers of alimony at great risk and recipients in an inequitably powerful position. Through lies, cheating and deception, the recipient ex-spouse can engage in “catch me if you can” relationships, leaving the payer frustrated and unable to establish key elements of the case. This article addresses some of the steps that can be taken to effectively prove your case, mitigate your exposure, and terminate alimony once and for all.
Tips to Proving Cohabitation:
1. Establish a consistent surveillance, including, but not limited to:
a. Monitor comings/goings from the residence to the workplace;
b. If the residence is a rental, try to set up a viewing of the property to survey the inside of the home (discretely look for and photograph personal items in the medicine cabinet, clothing in the closets and drawers, etc.);
c. Photograph/video “family” events, such as birthdays and holidays.
2. If you own a laptop used by your child, install spyware to verify use by the ex-spouse (there is no expectation of privacy if it is your property).
3. Monitor social networking sites for photographs, Wallposts, status changes, etc.
4. Conduct criminal background investigations, which may reveal useful information about the paramour.
5. Search bankruptcy filings to determine whether paramour has a separate residence, bad credit or other evidence of motivation to co-conspire with the ex-spouse for financial gain.
6. If you share a common bank account with your ex-spouse, monitor bank transactions to determine whether any funds are being utilized for or by the paramour.
7. Establish co-dependencies and supportive relationship by documenting sharing of vehicles, doing household chores, cooking meals, gaining access to the residence independently, going grocery shopping for the household, etc.
8. Obtain geolocation records for the paramour’s cell phone, which will establish with absolute certainty, his/her whereabouts (this will require a subpoena, so litigation will have to be instituted by this time.)
9. Appoint a Guardian Ad Litem to interview the children, who are living inside the household and can describe their observations.
Remember, the ex-spouse will claim an “entitlement” to having a relationship with someone of the opposite sex, including the ability to have sleepovers. If the claim is that this person only sleeps over on weekends, this amounts to approximately 8 – 10 nights/month. Look at your evidence as a “whole,” and seek to persuade the court or mediator that the weight of the evidence simply does not support the deceptive defense.