How Do I Know if my Spouse is Cohabitating?

In our last post, we talked a bit about what spousal support (alimony), and how in many cases it is paid out until the receiving spouse marries or begins cohabitating with a new partner. We got a few emails in asking “What ‘cohabitating’ mean, precisely?” and “How do I know if my spouse is cohabitating?”

The legal standards for cohabitation are a bit subjective, as many aspects of Family Law are. (That’s one reason why Family Law attorneys are so important to have on your side!) The precedent currently used to define cohabitation was set in Smith v. Smith (2008) and uses three rules:

• Does the couple regularly share a common residence?
• What kinds of financial arrangements have the couple established regarding their bills, costs, and debts?
• What is the exact nature of the couple’s relationship?

These might seem like straightforward questions, but human beings come up with some pretty extraordinary ways to relate with each other. In the Smith v. Smith case, for example, it was determined that Mrs. Smith was not cohabitating with her new partner because, despite having a years-long relationship with him, he maintained a separate home and — very importantly — had none of his personal belongings in her home (and vice versa) even though he regularly spent nights here. They also shared no bank accounts and each paid their own bills. Thus, not cohabitating — they were legally “just dating” for several years.

In another example case, Herman v. Herman (2012), the relationship for the receiving spouse (the wife, in this instance) and her new partner was a bit nontraditional (if somewhat normal for human beings as a whole): he was ‘just’ her sugar daddy. They had a sexual relationship, they both lived in his home, and she acknowledged her financial dependence on him — but they had no interest in getting married, and each shopped separately and even prepared their own meals, essentially remaining domestically independent.  The court ruled that ‘domestic independence’ was irrelevant: they shared a common residence, he paid her bills, and they had no intention of changing either of those two facts, thus, they were cohabitating, and Mr. Herman’s spousal support order was terminated.

Isn’t Cohabitation Illegal in Michigan?
Technically, yes — but the language of the law practically writes its own loophole, as the law only assigns a misdemeanor to “Any man or woman, not being married to each other, who lewdly and lasciviously associates and cohabits together, and any man or woman, married or unmarried, who is guilty of open and gross lewdness and lascivious behavior.”

Obviously, as morality has evolved, we’ve come to see men and women who are not married and are living together as perfectly normal, so unless the couple in question is particularly lewd and lascivious about their cohabitation, no judge is going to enforce this law. Even if they are, it’s not likely any judge will ever enforce this law. It’s basically a relic waiting to get removed from the books. Don’t count on it being relevant to anything, especially not if it’s your ‘ace in the hole’ for your big spousal support motion.

Got an alimony issue you’re struggling with? Call Gucciardo Family Law today at 248-723-5190 — we’ll help you understand your rights and options.