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Does Cohabitation Terminate Alimony in SC?

Does cohabitation terminate alimony in SC?

If you've been ordered to make permanent alimony payments to your former spouse, what happens if they move in with a new boyfriend or girlfriend? Should you still make alimony payments when they have another partner in their life who is contributing to their support?

There are three ways to terminate alimony payments in SC - death, remarriage, or "continued cohabitation."

If cohabitation terminates alimony in SC, how can you prove that your former spouse is now living with someone? What prevents them from moving out every so often to ensure that they are not "cohabiting" and to force you to continue making alimony payments?

If you are being forced to make alimony payments while your former spouse is living with someone in a new romantic relationship, you may have options. Call or email your Myrtle Beach divorce attorney on the Axelrod team now to find out if it is possible to ask the court to modify your permanent periodic alimony payments based on your former spouse's cohabitation.

Does Cohabitation Terminate Alimony in SC?

If your former spouse is living with someone in a new relationship, their "continued cohabitation" should allow you to terminate alimony payments. SC Code Section 20-1-130 provides that continued habitation terminates all forms of periodic maintenance (it does not affect "lump sum" alimony), including:

Periodic alimony:

Periodic alimony to be paid but terminating on the remarriage or continued cohabitation of the supported spouse or upon the death of either spouse (except as secured in subsection (D)) and terminable and modifiable based upon changed circumstances occurring in the future.

Rehabilitative alimony:

Rehabilitative alimony in a finite sum to be paid in one installment or periodically, terminable upon the remarriage or continued cohabitation of the supported spouse, the death of either spouse (except as secured in subsection (D)) or the occurrence of a specific event to occur in the future, or modifiable based upon unforeseen events frustrating the good faith efforts of the supported spouse to become self-supporting or the ability of the supporting spouse to pay the rehabilitative alimony.

Reimbursement alimony:

Reimbursement alimony to be paid in a finite sum, to be paid in one installment or periodically, terminable on the remarriage or continued cohabitation of the supported spouse, or upon the death of either spouse (except as secured in subsection (D)) but not terminable or modifiable based upon changed circumstances in the future.

Separate support and maintenance (alimony payments ordered as part of a temporary order before the final divorce hearing):

Separate maintenance and support to be paid periodically, but terminating upon the continued cohabitation of the supported spouse, upon the divorce of the parties, or upon the death of either spouse (except as secured in subsection (D)) and terminable and modifiable based upon changed circumstances in the future.

Note that, although "lump sum" alimony is not subject to termination if the former spouse is cohabitating with another person, the other forms of alimony are even if they are to be paid in one installment.

For example, "reimbursement alimony" can be paid monthly or it can be paid in one installment (a lump sum). But if cohabitation is provable before the installment is paid, the alimony is still "terminable on the remarriage or continued cohabitation of the supported spouse."

What is Cohabitation in SC?

Cohabitation is defined in SC Code Section 20-1-130 and SC Code Section 20-1-150:

For purposes of this subsection and unless otherwise agreed to in writing by the parties, "continued cohabitation" means the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days.

If the supported spouse lives with another person in a romantic relationship for at least 90 consecutive days, alimony can be terminated.

What if the supported spouse lives with another person in a romantic relationship for 89 days and then moves out for a week before returning? Can a supported spouse "game the system" to continue forcing a former spouse to pay alimony while they live with a boyfriend or girlfriend?

The definition also provides for termination of alimony if you can prove that the supported spouse and their live-in boyfriend or girlfriend are purposefully separating in order to prevent the termination of alimony:

The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement.

But how do you prove that they are 1) living together and 2) purposefully circumventing the statutory termination of alimony?

How do I Prove Cohabitation?

In many cases, evidence of continued cohabitation may come from your private investigator through methods that may involve prolonged surveillance - but this is an expensive proposition that many people may not be able to afford.

Other critical forms of evidence collected by your private investigator or attorney may include:

  • Documents received through discovery requests and subpoenas;
  • Bank records;
  • Utility bills;
  • Lease agreements;
  • Mortgage agreements;
  • Photos and video obtained by your investigator;
  • Facebook and other social media posts; and
  • Witness testimony.

Moore v. Moore - Cohabitation Terminates Alimony in SC

Despite the clear language of the statutes linked to above, SC courts have been slow to terminate alimony payments based on continued cohabitation.

This means that, if you are going to file for a termination of alimony payments based on continued cohabitation of your former spouse and your former spouse is trying to circumvent the 90-day requirement, you need to have solid evidence to prove not only the 90 days of continuous cohabitation but also to prove that the two periodically separated in order to circumvent the 90-day requirement.

In 2013, the SC Court of Appeals approve a termination of alimony based on cohabitation, only to be reversed by the SC Supreme Court in McKinney v. Pedery, with one justice writing that "[a]s the statute is written, it is virtually impossible to terminate any award of alimony as a result of the continued cohabitation of the supported spouse."

In April of this year, however, the Court of Appeals, in Moore v. Moore, again affirmed the termination of alimony based on cohabitation where:

  • Daughters 1 and 2 testified that Wife was living with her boyfriend;
  • Daughters 1 and 2 testified that Wife had pressured her not to testify;
  • Daughter 2 testified that Wife and boyfriend had "strategically planned nights apart so they were not together for 90 consecutive days;"
  • Daughter 2 testified that Wife tried to hide the cohabitation from Husband;
  • Daughter 2 testified that boyfriend would give money to Wife's sister who would then give it to Wife, so it did not appear that boyfriend was providing support;
  • Boyfriend testified that he did not live with Wife, but that he had a key to her house, was in a romantic relationship with her, his and his son's belongings were at her house, and if his testimony affected Wife's alimony it would affect their relationship; and
  • A second, previous boyfriend testified that she did not work because she thought Husband should take care of her with alimony, they had discussed the 90-day rule, and that they also had cohabited continuously for longer than 90 days.

Got Axelrod?

Continuous cohabitation does terminate alimony under SC law, but it can be difficult to prove. If you think that your former spouse is living with someone else in a romantic relationship and you want to terminate your alimony payments, we can help to gather the evidence you need before filing an action to terminate alimony for you.

Call your SC divorce attorney at Axelrod and Associates now at (843) 916-9300 or send an email to set up a consultation.

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