You got divorced and ended up paying alimony.
That’s a common occurrence.
Now, you’re still paying alimony, you just found out your ex-wife is living with another man, and they’re more or less living like they’re married. They share money, time, etc., but they haven’t actually married yet.
That’s a pretty common occurrence as well.
In legal terms, what your ex is doing is call “cohabitation.”
Effect of Cohabitation on Utah Alimony
In Utah law, if you’re receiving alimony and you cohabit, you stop receiving alimony.
Conversely, if you’re paying alimony and your ex cohabits, you don’t have to pay alimony anymore.
The problem is, in order to stop paying alimony, you have file a motion with the court to terminate alimony.
If you don’t do this, and you just quit paying, your ex can take you back to court to force you to pay, and then things get really messy.
Better to deal with the problem the right way and file upfront to terminate your alimony.
What Does Cohabitation Consist of?
The hallmarks of cohabitation are:
- A shared residence.
- An intimate relationship.
- A common household involving shared expenses and shared decisions.
How Do You Prove Cohabitation?
Proving your ex is cohabiting is the tough part in these cases.
You can’t just rush to court and say, “She’s shacked up with a guy; I know it.”
You have to step back and plan out how you’re going to prove she’s shacked up with a guy.
Here is a pretty comprehensive list of the specific evidence you want in order to prove your ex is cohabiting:
- Your ex and her boyfriend (I say boyfriend, but it could be girlfriend) share a residence. In other words, they live together.
Sharing a residence doesn’t mean your ex and her boyfriend can’t have separate homes. Cohabiters usually maintain two homes, but they live in one home most (i.e., more than 50%) of the time. And the best way to show people are living together in a home is to show that they stay in the home together overnight. Proving where people sleep is the gold standard in cohabitation cases.
- Your ex and her boyfriend have to share the residence for more than a temporary period of time.
They can’t just shack up for a week or two and have that count as cohabitation. The relationship needs to last for a while because it needs to be like a marriage relationship. Utah cases indicate that being together for more than 50 observed days is good enough to prove cohabitation.
- Your ex and her boyfriend will come and go from the shared residence as they please.
A hallmark of owning a home is coming and going whenever you want, not matter what time of day or who’s there. You want to show that your ex and her boyfriend come and go from their shared place whenever they want, even when the other person isn’t there. Showing that everyone has keys to the front door or garage door openers, and that everyone comes and goes at will is very strong evidence of a shared residence.
- Your ex and her boyfriend share an intimate relationship.
This intimate requirement is satisfied by sex, and that’s almost always how intimacy is prove. It doesn’t have to be sex, though. It could be a relationship in which people act like husband and wife, just without the sex. As a divorce attorney, I can tell you that doesn’t really happen. When people act like husband and wife for an extended period of time, they’re having sex, and judges know that.
- Your ex and her boyfriend share money.
Married people share money, and to prove cohabitation you have to prove money is being shared. To do this, you could show your ex and her boyfriend are:
- Sharing payments on the shared residence.
- Sharing utility payments.
- Sharing household expenses such as food.
- Paying for and taking vacations together.
- Maintaining joint bank accounts.
- Putting each other down as beneficiaries on investments like 401(k)s, or on life insurance policies.
- Filing joint taxes.
- Applying for loans or mortgages together.
- Making money decisions together.
- Jointly insured on car insurance, homeowners insurance, or renters insurance.
- Joint owners in vehicles.
- Regularly transferring money back and forth between their personal bank accounts.
- Shopping together.
This is not an exhaustive. Instead, it’s a list of the things courts most often look for in deciding whether someone is cohabiting or not.
- Your ex and her boyfriend share decision-making responsibilities.
Another hallmark of a marriage is sharing decisions about your family and your home.
What this really means is the more people share their lives and make substantial decisions together, the more likely a court will decide the relationship is cohabitation.
Examples of share decision making could include:
- Having children, and all the decisions that goes along with raising a family.
- Attending church together.
- Sharing input and making joint decisions about jobs and careers.
- Interacting with each other’s families.
- Getting engaged.
- Moving together.
- Collaborating about school.
- Purchasing big ticket items together.
Again, this is not an exhaustive list, but, instead, the most common evidence a court may look at when deciding on cohabitation.
How Do You Gather the Evidence to Prove Cohabitation?
Now that we’ve laid out what evidence is necessary to prove cohabitation, the question becomes: “How do you gather that evidence?”
There are two primary ways.
First, you hire a private investigator.
Private investigators are invaluable in proving cohabitation.
For example, they stake out where your ex and her boyfriend live and see how often they’re spending overnights together. They can attach GPS trackers on cars and monitor where your ex and her boyfriend are spending their time. They can also obtain cell phone data.
Usually, you want a private investigator to do at least 60 days of surveillance. Less than that and you risk the court saying it’s too little evidence.
(Note: this surveillance happens before you file to terminate alimony.)
Second, an attorney can obtain financial and decision-making evidence through discovery.
What this means is your attorney can ask questions and ask for documents proving your ex and her boyfriend are sharing money, etc.
(Note: discovery happens after you file to terminate your alimony.)
When your ex is cohabiting, you need to be deliberate about how you will handle the situation.
If your ex is trying to hide her cohabitation, you’ll probably need to hire a private investigator to gather good evidence, and then file to terminate alimony.
If you have good evidence of cohabitation when you file to terminate alimony, most exes will admit what they’re doing, and everything will be handled discretely in mediation.
If your ex isn’t the honest type, then you’ll need to go through discovery and get as much information as possible to show she’s living like she’s married to this new guy.
This process can be expensive, and that’s a consideration.
But, if you’re paying good alimony every month, and you’re supposed to pay it for years to come, that represents tens-of-thousands of dollars you shouldn’t be paying. And that’s a major consideration.
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