Shackin’ Up? = No Alimony!

Under Mississippi law, periodic alimony is subject to modification and termination, even if it’s based upon an agreement of the parties. See McDonald v. McDonald, 683 So. 2d 929, 931 (Miss. 1996) (The Court’s authority over periodic alimony award exists “regardless of any intent expressed by the parties to the contrary”).

Before 1994, Mississippi law provided that post-divorce sexual activity was illegal conduct which automatically terminated a wife’s right to alimony. This rule was changed in Hammonds v. Hammonds, 641 So. 2d 1211, 1216 (Miss. 1994), which held that in future cases the courts should consider only the economic effect of post-divorce cohabitation:

“[Our prior cases] clearly reflect a moral judgment that a divorced woman should not engage in sexual relations; the penalty for such activity is forfeiture of her right to support from her ex-husband. A secondary rationale in these cases for termination of alimony is the presumption that the divorced woman’s partner/cohabitant is providing financial support, thereby eliminating or reducing her need for support from her ex-husband. We find that only the latter issue—that of support—is properly before the court in its consideration of a request for alimony reduction or termination.” Id.

Three years later, in Scharwath v. Scharwath, 702 So. 2d 1210 (Miss. 1997), the Chancery Court held that the husband had not proven that the wife and her male companion were financially dependent upon one another and denied a termination of alimony. The MS Supreme Court reversed, adopting a formal presumption that cohabitation is a material change in circumstances sufficient to terminate alimony.

“This rationale, along with the facts of this case, accurately reflects the difficulty a providing spouse faces in presenting direct evidence of mutual financial support between cohabiting parties. The parties who live in cohabitation can easily and purposely keep their condition of mutual financial support concealed from the paying spouse, as well as from courts seeking only financial documentation before it will grant a modification. Such is the reason that we will, in future cases, apply the rule that proof of cohabitation creates a presumption that a material change in circumstances has occurred. See DePoorter v. DePoorter, 509 So. 2d 1141 (Fla. App. 1 Dist. 1987) (stating that presumption of material change in circumstances exists where recipient party cohabits with another). This presumption will shift the burden to the recipient spouse to come forward with evidence suggesting that there is no mutual support within his or her de facto marriage. While this presumption does not alter the overall burden of proof or the standard used to determine whether a modification is warranted, it does create a middle ground for this Court, between making moral judgment on the parties and condoning cohabitation outright.” Id., 702 So. 2d at 1211.

Under Hammonds, when a spouse receiving alimony is being supported by another person, that support is a sufficient change in financial circumstances to terminate alimony. To ensure that all relevant evidence was produced for the Court’s consideration, Scharwath placed the burden of proving financial independence upon the alimony recipient—the party with best access to the facts.

If an alimony recipient is cohabiting, the effect of that cohabitation cannot be removed by ending the cohabitation after a claim for termination of alimony is made. If that were the law, there would be little point in terminating alimony upon cohabitation at all, as alimony recipients would simply cease cohabitation whenever the rule is invoked.

So, if you are receiving alimony that terminates upon remarriage, cohabitation is also included as a terminable event.

Matthew Thompson is a family law attorney in Mississippi and says shackin’ up can be expensive.

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