The new Massachusetts alimony reform law contains provisions that spell out what happens if a recipient of alimony lives with someone while receiving alimony. Unfortunately the new provisions leave many questions unanswered. The statute says that alimony “shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household, as defined in this subsection with another person for a continuous period of at least three months.” The law does not give guidance as to which remedy is appropriate and under what circumstances. This means it is within the discretion of the judge hearing the case to reduce, suspend or terminate alimony, but because the statute says “shall” the court has to do something. There is no requirement that this relationship be of a romantic or sexual nature and the lack of guidance has caused some to ask whether residing in a common household with an elderly parent might have an effect on alimony. There is nothing in the law that prevents this interpretation.
In determining whether the recipient is maintaining a common household the Court may, but is not required to consider, “oral or written statements or representations made to third parties regarding the relationship of the persons,”” the economic interdependence of the couple or economic dependence of one person on the other,” “ the persons engaging in conduct and collaborative roles in furtherance of their life together,” the community reputation of the persons as a couple, or “other relevant and material factors.” These are helpful factors but are not bright lines that permit easy interpretation of the statute.
Perhaps this is an example of the legislature giving the Courts some authority and hoping that the individual judges will “know Cohabitation when they see it.” Our probate courts are accustomed to making these decisions based upon the particular facts in each case and will continue to do so under the new law. I think this weakens the ability of a recipient of alimony to rely upon a stream of payments and is especially problematic for a person leaving a long term marriage. The law allows for reinstatement if the cohabitation ends, but that too, is within the discretion of the court, and no real standards are provided. This is an area of the new law that I believe will increase not reduce litigation. It has been my practice to discourage modification actions based upon cohabitation by a former spouse, unless the economic advantage to the recipient of alimony is dramatic and easily proved. I think this new law makes it easier to modify an alimony order based upon cohabitation and will make it more likely that clients paying alimony will wish to see how the court interprets the new law, and take their chances on a modification action. I am not sure this is an improvement to our alimony laws and it may create more litigation than is justified. There are occasional stories we see and hear about people living together for long periods of time with a romantic partner, rather than marrying, just to continue receiving alimony, but these situations are rare and usually justified by the marital history. It will be much more likely that these situations will result in litigation to terminate, reduce or suspend the alimony obligation now that the path has been cleared by the new law.