Cohabitation Rule in Florida

[Skigator80]

What is the name of your state?What is the name of your state?
Florida.

I live in Florida, and am within 4 weeks of my final divorce of 15 years. My wife filed for divorce in Sep 2003, and moved to South Carolina. I was awarded temporary custody of my two children, ages 15 and 11 in January 2004, but was ordered by the court to pay her approximately $1,000 per month in temporary spousal support. We have since had a court appointed custody evaluation which was in my favor recommending I be awarded permanent custody and that they stay here with me. I am confident at the final hearing that the judge will award me the custody of the kids, but am concerned because we were married 15 years, considered a long term marriage in Florida, that I will have to continue to pay her spousal support.

My wife is working, but is living with a man in a two bedroom apartment. I am not sure if they are romantically involved, but they are "cohabitating" because they are living in the same apartment.

I have done some research, and am hoping someone out there knows what is normally done in Florida, or if there is a specific rule that talks about this.

Here is what I have found:

The Relevance of Premarital and Postmarital Cohabitation in Awarding Spousal Support
© 1995 National Legal Research Group, Inc.

At the outset, it is important to note that there are two different types of cohabitation which may be relevant. First, the parties themselves may live together for a period of time before they get married. Such premarital cohabitation may be one factor for the court to consider in making an initial support award. Second, after the initial award is made, the recipient spouse may cohabit with a third party. By virtue of statute, case law, or the specific provisions of a separation agreement, such cohabitation may constitute grounds for terminating the prior support award.

I. PREMARITAL COHABITATION

While many state legislatures have enacted statutes regarding postmarital cohabitation, no state legislature has enacted a provision which specifically requires a court to consider premarital cohabitation with one's future spouse when awarding alimony. Nevertheless, premarital cohabitation could conceivably be considered a relevant factor in awarding alimony under the "catch-all" provisions which can be found in many alimony statutes. See, e.g., Fla. Stat. Ann. 61.08(2) (West Supp. 1995)("any other factor necessary to do equity and justice between the parties");

This statement: "Such premarital cohabitation may be one factor for the court to consider in making an initial support award" may prevent my having to pay spousal support.

A few courts have taken the position that, even absent a statute, a separation agreement, or a divorce decree which so provides, an alimony recipient's "sexual misconduct," such as cohabitation, is sufficient, without further proof, to warrant the modification or termination of alimony. See, e.g., McRae v. McRae, 381 So. 2d 1052 (Miss. 1980) (former wife forfeited alimony by openly living with a man for more than a year); This may apply in Florida.

I know there is no law on the books in Florida, but it may be relevant factor in awardng alimony.

The rule in Florida has been stated as follows:


[i]n the absence of an agreement, when a payor spouse challenges the receiving spouse's right to continue to receive periodic alimony because the receiving spouse is cohabiting without the benefit of marriage, the court must determine whether either the new cohabiting partner is providing some support to the receiving spouse, thereby lessening the receiving spouse's need; or the receiving spouse is diverting some of the support alimony to the new cohabiting partner. If the court finds the answer to either of these questions to be in the affirmative, it must then decide what effect such a fact should have upon the payor spouse's obligation to continue to pay alimony.

MacLaren v. MacLaren, 616 So. 2d 104, 106 (Fla. DCA 1993).



MY QUESTION: My attorney is not sure this will apply in Florida, but it seems like it may to me. Does anyone know of case law or cases in this state or courts that have taken the position that cohabitation is sufficient to terminate or not award alimony?


Thanks!

[nextwife]

Have you filed for CS as the CP? At minimum, she should be obligated to pay CS based upon minimum wage!

"My attorney is not sure this will apply in Florida, but it seems like it may to me."

Get a new lawyer.

[huntersmommy06]

3 F.S.; defining the term "de facto marriage";

4 amending s. 61.14, F.S.; requiring a court to

5 terminate payment of alimony if there is

6 competent, substantial evidence to show that

7 the recipient former spouse is cohabitating

8 with a person of the opposite sex outside of

9 the legal bond of matrimony; providing an

10 effective date.

11

12 Be It Enacted by the Legislature of the State of Florida:

13

14 Section 1. Present subsections (4) through (20) of

15 section 61.046, Florida Statutes, are redesignated as

16 subsections (5) through (21), respectively, and a new

17 subsection (4) is added to that section, to read:

18 61.046 Definitions.--As used in this chapter:

19 (4) "De facto marriage" means a marriage in which the

20 parties live together as husband and wife under color of

21 validity but which is defective for reasons of form.

22 Section 2. Subsection (1) of section 61.14, Florida

23 Statutes, is amended to read:

24 61.14 Enforcement and modification of support,

25 maintenance, or alimony agreements or orders.--

26 (1)(a) When the parties enter into an agreement for

27 payments for, or instead of, support, maintenance, or alimony,

28 whether in connection with a proceeding for dissolution or

29 separate maintenance or with any voluntary property

30 settlement, or when a party is required by court order to make

31 any payments, and the circumstances or the financial ability

1