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My ex-wife is cohabitating but denies it. Can I stop paying alimony, or is there a court process I must follow?

Clarksburg, WV |
Filed under: Alimony

My divorce decree states that I will pay alimony until my ex-wife remarries or cohabitates, and now she is cohabitating. Do I have to go through the courts to get the OK to stop paying? What repurcussions would there be for me if I just stopped paying it?

I have time stamped photos of his vehicles in the driveway, but the majority of the evidence would have to come from my son, who is 12. I really don't want to have to sub peona my son to testify in court, I want to keep him out of this if possible.

My son said he moved in, he bought a game console for the house, he has purchased a jacket and shoes for my son, and he has a pet in the house. He has been there nearly without interruption for 2 months. If I can't stop paying, what things would I need to prove she is cohabitating?

Attorney Answers 1


Yes, you will have to go thru the court. If not, you could be found in contempt of the order. No, you don't want your son as a witness and the court won't let him be one. Your photos won't be enough proof, because it could be just visiting, unless you have a series of them at overnight times. That would take hiring an investigator. You could subpoena and depose him under oath. You could depose her under oath. But will they lie? Are there any adult friends or relatives privy to her situation who would testify? You might subpoena the Postal Service about whether his mail is now forwarded there. Testimony of his past lanlord, if known. Subpoena his work records to see if he has generated a change of home address. All processes that cost money and may be shots in the dark. The investigator may be the best route, only becuase he/she paid to stake out and look into other things, or it might be as simple as getting into a hearing and have her state what's going on under oath. Speak to a local attorney about options.

To questioners from West Virginia & New York: Although I am licensed to practice in your state, I practice on a day-to-day basis in Massachusetts. I answer questions in your state in areas of the law in which I practice, and in which I feel comfortable trying to offer you assistance based on my knowledge of specific statutes in your state and/or general principles applicable in all states. It is always best, however, to work with attorneys and court personnel in your own area to deal with specific problems and factual situations.

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Lately there hasn't even been pictures of a vehicle because he doesn't have one. So for at least 3 weeks he has been there pretty much 24/7. My ex-wife is not an honest person, so I don't think she would be honest even under oath. As far as he is concerned, I know the company he works for but I don't even know his last name. Regarding my son. I wasn't sure if there was some procedure the courts used to gather information without having him testify in court, sort of like having a guardian ad litum visit him or something like that. Apparently that's not the case.



One other thing ... what would happen during a contempt of court hearing? Would I then depose them, other adult witnesses, subpoena the post office and his work, etc? If so, that's the same thing I would have to do anyway, but maybe she won't file contempt of court knowing that she is cohabitating. Or, would I simply be found in contempt of court for not paying without going through the court first, and not have the opportunity to prove that she was cohabitating and therefore stopped making the payments?

Thomas J Callahan

Thomas J Callahan


This is where my being licensed in WV but not practicing there day to day makes a difference. I am not sure how contempt proceedings are conducted. If like here, they are scheduled pretty quickly after filing, and so there is little or no time to do subpoenas and depositions beforehand. If the judge conducts and evidentiary hearing, then you can call third parties as witnesses and produce authenticated documents. All difficult to do without a lawyer. What could happen to you if she brings contempt is that you could be found in willful violation of the order even if your belief of cohabitation proves true. I wouldn't risk angering the judge by having taken matters into your own hands on the chance you might be right. Go thru the modification process to seek to end it and prove your case. As for you r son, yes a GAL could be asked for, but that still involves him in the case. Judge likely won't like use of your son to prove this. Obviously, you will say that your info, or some of it, comes from your son, people always recount what their kids told them about visitation. But see how judge weighs your credibility in recounting son's words versus credibility of her denials before seeking to bring him into this.

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