Does Cohabitation Terminate the Payment of Maintenance

While I took a short break from writing this blog, the Appellate Divisions have been very active, having decided several matrimonial cases of interest. In the next couple of posts, I will try to catch-up and discuss some of these recently decided cases.

In Graev v. Graev, the First Department, sought to answer the question, when does an ex-spouse’s cohabitation with another adult result in a forfeiture of maintenance payments?

Domestic Relations Law § 248 allows the court to eliminate maintenance upon proof that the wife is habitually living with another man and holding herself out as his wife. What happens when the parties have an agreement that merely provides that maintenance is to stop when the recipient of the spousal maintenance cohabitates with someone for some period of time?

In Graev, the parties had a settlement agreement which provided that maintenance would terminate upon “the cohabitation of the Wife with an unrelated adult for a period of sixty (60) consecutive days.”

The Court in a 3-2 decision, certain to appealed to the New York’s highest court, the Court of Appeals, ruled that the merely living together is not cohabitation sufficient to terminate maintenance. In order to terminate the maintenance, the Court ruled there must an economic component to the cohabitation.

New York courts have uniformly construed the term "cohabitation," when used in agreements governing the modification of support obligations, as more than a romantic relationship or series of nights spent together. . . . However, New York case law interpreting similar clauses looks to the sharing of finances to determine whether parties are "cohabitating." This analysis makes sense, given the underlying question of whether the relationship at issue is the type of "changed circumstances" which would render a support obligation unjust

Two Justices, in dissent, criticized the majority for not giving the word “cohabitation” its plain dictionary meaning.

How and whether they pooled their resources, a factor significantly relied upon by the majority, is not determinative of cohabitation. It ill behooves any court to impose such a burden on the meaning of cohabitation, a fairly plain contract term. . . In no dictionary definition of the term is the sharing of expenses an essential component of cohabitation or even a characteristic of the relationship. "[C]ourts often look to the dictionary to determine the ordinary meaning of a disputed term" . . . Nor, as noted, is it the statutory standard for terminating maintenance as set forth in Domestic Relations Law § 248

Ultimately, the Court of Appeals will decide if merely living together is enough to constitute cohabitation sufficient to terminate the maintenance payments or whether there must be something more, i.e., a sharing of expenses. In the meantime, draftsmen of agreements need be particularly careful to specifically define all of the events that terminate the payment maintenance.

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