What acts cause alimony to end? Generally, the obligation to pay alimony by the supporting spouse terminates if the dependent spouse remarries or cohabitates with another person or upon the death of either the supporting spouse or dependent spouse. See N.C.G.S. § 50-16.9(b). If there is a remarriage, the rule is clear in that alimony payments end automatically on the date of remarriage and the obligor does not have to file a motion to stop payments. With cohabitation, there is no bright line rule. The court considers many factors to determine whether there is cohabitation and the obligor may not unilaterally stop alimony payments, but must file a motion for termination and obtain a court order to terminate alimony payments.
Cohabitation is defined as two adults “dwelling together continuously and habitually” in a private heterosexual or homosexual relationship in which they assume the marital rights, duties, and obligations typically manifested by married couples. Id. Thus, there are two elements to establish cohabitation:
The parties have been dwelling together continuously and habitually.
The parties have assumed the marital rights, duties, and obligations of married people.
See Suzanne Reynolds, Lee’s North Carolina Family Law § 9.85, at 493 (5th ed. 1999).
“Continuous and habitual” means the relationship between the dependent spouse and the third party is exclusive, monogamous, and of some duration and regularity. Id. at 495. “Assuming the marital rights, duties, and obligations” is determined by parties’ “household routine, social life, financial matters, and sex life.” Id. at 497. Factors considered include
Whether the parties have joint accounts
Whether the third party pays some of the dependent spouse’s bills
Whether the third party keeps personal belongings in the dwelling
Whether the third party still keeps a separate residence
Whether the third party helps the dependent spouse with child care
Whether the parties take vacations and spend holidays together.
There are a few cases which address cohabitation. In Oakley v. Oakley, 165 N.C. App. 859 (2004), the court held that the appellant failed to establish cohabitation where he only showed a sexual relationship and occasional dates and trips. On the other hand, in Rehm v. Rehm, 104 N.C. App. 490 (1991), the court found sufficient evidence of cohabitation where:
The wife had a sexual relationship with a man for eleven months
The man stayed with her up to five nights a week
The man had clothes at her home
They took trips together with her child
He kissed her goodbye in the mornings.
In two cases, the court reversed summary judgments. In Craddock v. Craddock, 188 N.C. App. 806 (2008), the wife and third party owned separate residences and did not share finances, but they had maintained a monogamous relationship for five years, and took trips and spent holidays together. The court found that there was a genuine issue of material fact and remanded.
In Bird v. Bird, 363 N.C. 774 (2010), the supporting spouse had a romantic relationship with a man who stayed at her home, once for 11 consecutive days, walked her dog, let handymen in and out of the house, parked in her garage, carried groceries in the home, and dined together with her children. There was also evidence that the man had exchanged cars with the wife and took trips with her and his separate residence appeared neglected. Because the wife and man asserted that there was no cohabitation, that he had never moved into her home, and that they did not share finances, the Court held that there was a genuine issue of fact regarding cohabitation.
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