Cohabitation And The TCJA

The Tax Cut and Jobs Act effective January 1, 2019 changed the lives of divorcing couples in many ways.  The biggest change to the Act is that alimony is no longer deductible to the payor and includible in the income of the payee.  The common wisdom is that the courts are apt to proceed cautiously when awarding alimony.

One of the most appealing ways to reduce or terminate payments is to write in a provision to your Separation Agreement that either references Connecticut General Statutes section 46b-86 (b) and its applicability to your case or sets forth conditions of your own upon which alimony will cease because of cohabitation with another person.

You can write in provisions that exclude a non-romantic roommate or caregiver.  You can include any person who causes a change in financial circumstances as to alter the financial needs of the payee.

In Connecticut, there are currently two prongs to proving cohabitation.  They are discussed at length in Connecticut General Statutes section 46b-86 (b) and the case law.

The first prong to be proved is that your ex-spouse is indeed living with another.  This can be shown by mail delivered to the cohabitant at the address of the ex-spouse, photos, testimony of others and/or surveillance by a private investigator.

The more difficult task is to prove that the living arrangements cause such a change of circumstances as to alter the financial needs of that party.  It is important to note that the needs do not necessarily have to be substantial.  They just need to be quantifiable in dollars.

In earlier cases, the courts required that the cohabitant must have provided money to the ex-spouse.  In the 2017 case of Spencer v. Spencer, the court clarified the matter of contribution further.  In that case, the court found that a reduction in living expenses was sufficient to qualify for modification of alimony. The 2018 case of Murphy v. Murphy, sealed the determination that a party seeking a reduction of alimony need only show a reduction in the need for alimony by showing that the other party is saving money by living with another person.  The payor can show that the cohabitants are sharing rent, money for food, utilizes and so forth.

As is often true in law, the criteria is financial and must be proved in dollars rather than in terms of morality.