The major revisions to New York divorce law enacted in 2015 included significant changes to how courts will award – and terminate – temporary and permanent spousal maintenance.
One of the changes the law addressed was the effect a spouse’s cohabitation with another person had on the other spouse’s obligation to continue making maintenance payments. While the language of the statute was revised to reflect changing times, the substance unfortunately remains largely the same.
A revision of the law with regards to maintenance and cohabitation was long overdue. The New York statute that addressed the issue, Domestic Relations Law §248, was enacted in 1938 and it showed its age. Section 248 provided that a court could terminate maintenance obligations:
“upon application of the husband on notice, upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man…”
The language of the statute is of course anachronistic. But the biggest problem was that the “holding herself out as his wife” provision made it extremely difficult to terminate maintenance even in situations where the former spouse and her new significant other were sharing their lives and finances in such a way as to make continued maintenance patently unfair. (For an extended and detailed discussion of the history and challenges of Section 248, you can read the 2015 Supreme Court of New York decision in Sanseri v Sanseri)
Effective January 23, 2016, revised DRL Section 248 contains “gender neutral” language which now provides that a court may modify maintenance upon proof that the “payee” is holding “himself or herself” out as the spouse of another person, although not married to such other person.
These revisions do nothing to change the requirement that the former husband or wife must “hold themselves out” as the spouse of their new cohabitant in order for cohabitation to be the basis of termination of maintenance.
That said, the parties are free to enter into a marital settlement agreement that provides for the termination of maintenance upon cohabitation for a certain period of time, regardless of whether anyone is “holding themselves out” as a spouse. However, as I wrote here, the parties need to be very careful in laying out what exactly constitutes “cohabitation” and what arrangements between the spouse and their significant other will trigger the termination of maintenance.
If you have questions or concerns regarding New York spousal maintenance obligations or any other matters pertaining to divorce, please give New York divorce and family law attorney Daniel Clement a call at (212) 683-9551 or fill out our online form to arrange for a consultation. We look forward to assisting you.
