Written by attorney Jonathan Robert Simon

Modifying Alimony Based on Cohabitation?

Three prerequisites are required for a modification of alimony: 1) a substantial change in circumstances; 2) that was unanticipated, or not contemplated, at the time of final judgment of dissolution; and 3) is sufficient, material, involuntary, and permanent in nature. Reno v. Reno, 884 So. 2d 462 (Fla. 4th DCA 2004). A trial judge may not terminate alimony simply based on the fact that the party receiving alimony cohabitates with another person, even when this arrangement appears to be one consistent with a de facto marriage. Reno, 884 So. 2d at 465; Dibartolomeo v. Dibartolomeo, 679 So. 2d 72, 72-73 (Fla. 4th DCA 1996) ( When a party seeks the modification of alimony, this does not permit the trial court to terminate alimony. Reno, 884 So. 2d at 465. However, when a party requests that alimony be terminated, the trial court has jurisdiction to modify the alimony. Id.

Florida Statute section 61.14 ( provides for the modification or termination of alimony “upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides." The party paying alimony bears the burden of proving by a preponderance of the evidence that a supportive relationship exists. Id. The statute then provides a list of eleven factors to be considered by the trial court in determining the existence of a supportive relationship. § 61.14 (, Fla. Stat. (2007). These factors include but are not limited to the length of cohabitation, and whether they have shown financial interdependence, agreed expressly or impliedly to support one another, actually supported one another, performed services for each other, bought property or assets together, or supported each other's children. Linstroth v. Dorgan, 2 So. 3d 305 (Fla. 4th DCA 2008). The court may rely on any factor listed, as well as others not listed, either alone or in combination, as the circumstances may suggest in order to find that the party receiving alimony and the third party’s cohabitation is a supportive relationship. Id.

In order for the trial court to modify an award of alimony, the trial court must find that there has been an unanticipated, substantial change in circumstances. Cohabitation may justify the modification or elimination of alimony depending on how the new living situation has impacted the alimony recipient's financial condition and continued need for alimony. Obviously, if a spouse receiving alimony enters into an arrangement which involves living with a member of the opposite sex, that is clear evidence of a substantial change of circumstances. Stuart v. Stuart, 385 So. 2d 134 (Fla. 4th DCA 1980). However, to justify the modification, the court should focus on how the living situation has impacted the former spouse’s financial condition and need for continued support. Dibartolomeo v. Dibartolomeo, 679 So. 2d 72, 73 (Fla. 4th DCA 1996). The court has held that a supportive relationship, while not a de facto marriage, takes the financial place of a remarriage and necessarily decreases the need of the party receiving alimony. French v. French, 4 So. 3d 5 (Fla. 4th DCA 2009) (finding a supportive relationship warranting modification of alimony where former wife was worth ten times more than she was at the time of her dissolution, the parties use each other’s residences as a common mailing address, sleep together in the same room, share housekeeping and cooking responsibilities, the parties travel abroad together, and the parties have separate finances and pay their own bills). Therefore, once a trial court makes a finding that a supportive relationship exists, it must by necessity either reduce or terminate alimony because the party receiving alimony’s need has changed. Id. However, cohabitation alone cannot precipitate a termination of alimony without the factual finding of a change in circumstances concerning the former spouse's needs and finances. Dibartolomeo, 679 So. 2d at 73.

Even if the trial court finds that there is competent evidence of cohabitation to show a substantial change in circumstances to justify a modification, the trial court must find that this evidence demonstrates that the change is permanent in order to modify or terminate the alimony. Long v. Long, 622 So. 2d 622 (Fla. 2d DCA 1993) (reversing the modification of alimony where wife’s uncontradicted testimony demonstrated that the monetary contributions barely covered companion’s share of groceries and utilities or that wife’s expenses were reduced). The party seeking termination must demonstrate that the party receiving alimony is able to support himself or herself through their own efforts and resources. Id.; Townsend v. Townsend, 285 S. 2d 468 (Fla. 2d DCA 1991) (reversing modification where evidence demonstrated that wife only modestly and temporarily improved her condition by sharing the expense and investment of a home and a car with another person). However, the voluntary contribution of a live-in companion cannot be equated with the legal obligation of a former spouse and, thus, one cannot be substituted for the other. Long, 622 So. 2d at 622. Therefore, in the absence of a legally binding agreement between the party receiving alimony and the live-in companion, there is no evidence to conclude that this economic change is necessarily permanent. Id. The court’s reasoning is based on the fact that in the event the companion moves out, the party receiving alimony has no legal ground upon which to pursue his support. Id.

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