Does Alimony “Until Remarriage” Address Nonmarital Cohabitation?

Lack of thoughtful detail in judicial decrees involving alimony and future payments after divorce continually creates legal issues. To the extend one negotiates this language, one must be precise concerning how future payments might be funded (for example, presently financed trust funds administered by a reputable financial institution, or paid-up non-forfeitable life insurance policies held by the Court’s Clerk, etc.). What events will alter the responsibility to make future payments (for example, death, retirement, disability, remarriage, cohabitation, etc.)? Always consult an experienced family law attorney in specific situations.

A recent Texas judicial decision concerning alimony payments involved cohabitation that fell short of remarriage. To provide context for this decision, the following is a brief explanation of informal marriage.

Approximately eight states recognize informal (common law), non-ceremonial (no marriage license or official ceremony) marriage. The largest of these states is Texas. Another group of states have grandfathered in informal marriages that were created prior to a statutorily designated date.

The state legislative trend for many years has been to abolish informal marriage since ceremonial marriage is readily available and the ceremony provides clear evidence of intent to be married. The historical reasons for informal marriage involved the difficulty in obtaining licensed clergy to perform a marriage ceremony in a rural area coupled with the old English legal rule that if one were not married in an officially sanctioned manner the children of the relationship were considered illegitimate and could not inherit their biological parents’ property. Nonconformists to the official state church (be it Catholic or Protestant) faced significant problems that the legal concept of informal marriage helped resolve. It is frequently asserted that the English Marriage Act of 1753abolished common law marriage in Britain; however, this statute contained a number of exceptions including one stating that it did not apply to British colonies. Hence, common law marriage remained in early U.S. history.

Since judicial proceedings are required to obtain a divorce (no common law divorce), there may be a situation where an individual is still lawfully married to an earlier spouse in spite of having passed through several seemingly marital relationships. This has over the years created significant property and insurance benefit issues.

To address this confusion, some states otherwise allowing informal marriage have enacted legislation allowing an informal marriage to be recorded in the public records like a ceremonial marriage or requiring that the existence of an informal marriage be asserted within a period of years (perhaps 3) after cohabitation ended. Otherwise, the informal marriage does not exist. However, the easiest legislative solution is to simply abolish informal marriage.

The Texas Court decision involved an individual who had been ordered to pay $380,000 per year to a former spouse by a British court “until remarriage.” He attempted unsuccessfully to assert the former spouse had contracted an informal marriage in Texas.

The decision under review (2:1) occurred on May 3, 2016, in the Texas Court of Appeals in Dallas (Assoun v. Gustafson). The original divorce occurred in London, England, in 1997 and, in a revised judgment in 2013, the London court ordered alimony payments of $380,000 per year. After a subsequent move the Texas, the former spouse sought a declaratory judgment that an informal marriage had occurred.

The Court noted that the Texas Family Code states “that an informal marriage may be proven by evidence that the couple agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.” [Texas Family Code Sec. 2.401(a)]. “However, it is difficult to infer an agreement to be married from cohabitation in modern society.” Even an occasional reference to being married does not alone prove an informal marriage. Consent to be married cannot simply be presumed.

Here, the presumed Texas couple, living together, submitted to the Court sworn statements (affidavits) that they had never agreed to be married. The details of the affidavit are repeated in the Court’s opinion. She indicated her homestead status in the connection with the sale of her home as single and declared herself as divorced on an auto insurance application. Tax returns indicating filings as a single person were attached.

An informal marriage was asserted by facts that the presumed Texas couple: lived together, she wore a ring on her ring finger, children called her “stepmom,” and the couple occasionally indicated that they were married when registering at a foreign hotel.

The two person majority opinion found that the evidence presented failed to indicate a factual question concerning an agreement to be married. Hence, the majority upheld summary judgment (a decision without a trial) in favor of dismissing the lawsuit. The majority also determined that no addition evidence need be sought or produced. The dissenting opinion stated that the majority opinion only focused on the agreement to be married and not the total situation that should be heard by a jury.

This decision is another cautionary word concerning the critical importance of divorce decree language. Are there circumstances, short of remarriage, that should terminate alimony? Does the decree address cohabitation and how is it defined? Is there a time frame for living together short of marriage that triggers the end of alimony or spousal payments? What is the obligation of the estate of a deceased person who is paying alimony? To what extend are the payments a result of a property division? Is the divorce degree language subject to challenge in Bankruptcy Court? Are spousal retirement accounts subject to these claims? Thoughtful clarity on a broad range of issues is essential. Alternatively, one must understand the default judicial or statutory positions on these issues. Unfortunately, in many situations that end up in court, the questions appear not to have even been considered. A more generous interpretation is that the parties were eager to reach agreement and did not want “minor” details to prevent agreement.

Alimony in a majority of states is not a matter of right. Rather the judge has broad discretion in considering the facts and ruling accordingly concerning the amount to be paid. Legislation, however, may specifically address cohabitation and the obligation to pay alimony. Always consult an experienced attorney concerning a specific state’s law.

State law varies concerning alimony payment obligations when cohabitation short of remarriage occurs. The following are four brief examples, two legislative and two judicial, that illustrate the diversity of state law. Of course, these are not all the variations.

The California Family Code states: “Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a nonmarital partner. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support…” (Cal. Family Code Sec. 4323). Note, however, that an agreement by the parties is typically upheld by judges, absent exceptional circumstances such as gross unfairness, fraud, or duress.

Massachusetts legislation provides: Alimony “shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household … with another person for a continuous period of at least three months. ” (ALM GL Ch. 208, Sec. 49).

The New Jersey Supreme Court in a May 3, 2016, decision terminated alimony based upon this agreed divorce settlement provision: “alimony shall terminate upon the Wife’s death, the Husband’s death, the Wife’s remarriage, or the Wife’s cohabitation, per case or statutory law, whichever event shall first occur” (Quinn v. Quinn). In this case the former wife ceased her cohabitation during the trial and argued unsuccessfully that the obligation to pay alimony should only be suspended during periods of cohabitation.

A Utah Court of Appeals decision on Feb. 19, 2016, not only ended alimony but retroactively terminated the obligation to pay from the starting date of cohabitation, resulting in a judgment in favor of the ex-husband for the overpayment (Scott v. Scott). The Utah Court indicated that “cohabitation involves living together and being sexually intimate under circumstances akin to marriage,” that in this situation had existed for two years.

This comment provides a brief and incomplete overview of a complex topic and is not intended to provide legal advice. Always consult an experienced family law attorney in specific situations.

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