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Legal Eagle: Living with the financial aspects, definitions of cohabitation
Thursday, November 23, 2000 By Patricia G. Miller
"Cohabitation" is not a word we use often, but one that is frequently important to divorce lawyers. It has to do with people's living arrangements, and how a living arrangement is defined can mean hundreds, if not thousands, of dollars to divorce lawyers and their clients.
Patricia G. Miller is the permanent equitable distribution master for the Family Division of the Court of Common Pleas of Allegheny County. Her views do not necessarily represent those of the division or its judges.
Webster's Dictionary defines cohabitation as "to live together as husband and wife" or "to share the same place." Ah, there's the rub. There is a huge difference between those two definitions. Let's look at the two ways the question comes up. Both can cost someone lots of money.
The first relates to alimony. Our divorce law prohibits paying alimony to a former spouse who is cohabiting -- but not with just anyone. It has to be with an unrelated member of the opposite sex.
Suppose Ann and Beth are living together. Ann is divorced and is receiving alimony for 24 months. Ann and Beth happen to be lesbians who share an intimate relationship that they consider the functional equivalent of marriage.
Might Ann lose her alimony? Only if the court went by Webster's definitions. She wouldn't under Pennsylvania's divorce law, which specifies cohabiting as being with an unrelated member of the opposite sex. Ann would be home free while her alimony-paying ex-spouse fumes.
Now suppose that Mary Jones is living with Charles Smith. Like Ann, Mary is receiving alimony. She and Charles are roommates who share expenses such as rent and utilities but not a bed. They have absolutely no romantic relationship. In fact, each is engaged to someone else. Has Mary lost her right to alimony? Maybe.
If her ex-husband feels like testing the law, he has a good chance of winning. Mary's living arrangement meets the state law's specification of cohabitation as living with an unrelated member of the opposite sex, as well as Webster's second definition: "to share the same living space."
Nancy in Erie County learned this the hard way.
Nancy, who had a right to receive alimony for 36 months, took a sick friend into her home. While being motivated by a philanthropic desire to aid a friend in need, she made two serious mistakes: Her housemate was a member of the opposite sex, and they shared a bed.
When her ex-husband took her to court to terminate her right to alimony, she vigorously denied that there was any sexual relationship. It didn't matter. Even though her former husband couldn't prove any sexual or financial interdependence, the shared living arrangement, coupled with the shared bed, did her in.
But it's not just dependent ex-spouses receiving alimony who need to worry about what cohabitation means. So do divorcing couples who have to divide their property. The only property that can be divided by a divorce court is that which was acquired before separation. Anything acquired later belongs only to the person who acquired it. A problem arises when couples disagree on when they separated.
Our divorce law says that separation is the ending of all cohabitation. It's not the most helpful definition. Suppose that husband won $50,000 in the lottery. Wife says it was before separation, so the money is marital and she gets a share. Husband says it was after separation, so it isn't marital.
How can that be, you wonder, because people are either living together or they aren't? Alas, life isn't always that clear cut.
It is not at all uncommon to see an unhappily married couple with a two- or three-year difference of opinion about when they separated. Typically, the earliest date is when one of them decided that the marriage was over and filed for divorce or started sleeping on the couch. The end date is when one of them actually moves out. What went on in the interval was the gradual deterioration of their marriage.
Unfortunately, no matter whether you are an ex-spouse paying or receiving alimony, or married and wondering about that lottery ticket, there is no clear-cut cohabitation test in Pennsylvania. You may want to consult your divorce lawyer before you move to the couch, win the lottery or invite a friend to share your living quarters.
Who said life was simple?
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