Sex, Cohabitation, Divorce, And Spousal Support

It is somewhat common in divorces for the parties to reach an agreement regarding spousal support.  Tuesday’s decision by the Court of Appeal in Graev v Graev, 2008 NY Slip Op 0794 should give a warning to parties entering into such agreements, and the attorneys drafting them, to make it explicitly clear what the terms of the agreement are.

The issue in the case involved exactly what does the term “cohabitation” mean? Is its meaning clear under New York law?  Does it require sexual relations or not?  Does it imply some sort of economic union?

In the case before the Court, during the parties’ divorce, the husband and wife entered into a settlement agreement.  The agreement required the husband to pay spousal support to the wife until the occurrence of any of four “termination events.”  These were: (1) the wife’s remarriage; (2) the wife’s death; (3) the husband’s death; or (4) “[t]he cohabitation of the Wife with an unrelated adult for a period of sixty (60) substantially consecutive days.” The agreement did not define “cohabitation.”

After the agreement was entered into, the husband began conducting surveillance on his wife, and based on this surveillance, he believed that she had been cohabiting with a male (let’s call him “MP” as the Court did).  The husband thus stopped making the spousal support payments.

The wife then sought judicial relief to enforce the settlement agreement’s spousal support provision.  The husband moved for summary judgment claiming that the wife and MP were cohabiting within the meaning of the settlement agreement because MP had stayed overnight in the wife’s vacation home in Connecticut for at least 60 substantially consecutive days during the summer of 2004, as borne out by surveillance. Further, he contended, there was an “obvious serious relationship” between the wife and MP and that MP was the wife’s “lover and life partner,” as demonstrated by the number of family occasions — weddings, birthdays and the like — they attended as a couple.

In response, the wife argued that she did not “cohabit” with MP during the summer of 2004 because their relationship had long been purely platonic.  And she attempted to prove this with evidence of MP’s sexual incapacity and her diminished sexual desire caused by prescribed medication. In her view, “cohabitation” meant having sexual relations.

The husband insisted that “cohabitation” was not synonymous with and did not require a showing of “sexual relations” under the law.

Before a hearing on the matter, the husband sought to introduce extrinsic evidence of the “circumstances surrounding the separation agreement” so as to explain what behavior the parties intended to cover by the term “cohabitation.” The wife opposed this motion claiming the motion court was able to define the term cohabitation in accordance with the plain meaning of the term as construed by the case law.  The motion court denied the husband’s motion finding that the word “cohabitation” as used in the separation agreement was not ambiguous.

During the actual hearing, the wife admitted that at least for a period of three months her relationship with MP was sexual.  Other evidence admitted demonstrated that their relationship remained romantic and exclusive for over three years; they participated in social activities with friends and family as a couple and split costs when dating; and they performed chores and errands together.  The wife  nevertheless argued she and MP were not “cohabiting” within the meaning of the separation agreement because “cohabitation” required the central element of maintaining one residence, sharing household expenses and functioning as an economic unit.  And in this case, it was undisputed that MP owned his own home in Connecticut, where he spent considerable time, and did not contribute to the costs of maintaining the wife’s summer home.

Both the Supreme Court and the Appellate Division found in favor of the wife essentially holding that previous case law had demonstrated that “cohabitation” had a plain meaning, it was not ambiguous, and it had been consistently interpreted to mean more than a romantic relationship or series of nights spent together, or more than an adult dating relationship.  It required some type of “changed economic circumstances,” a sharing of finances, a sharing of a residence, or an economic relationship akin to a shared possessory interest in one home.  In other words, the couple must function as an economic unit.  And based on the evidence, both these courts found that there was no such relationship between the wife and MP because MP owned his own home and there was “absolutely no evidence that the couple shared household expenses or functioned as a single economic unit.”  Thus, since the relationship did not amount to “cohabitation,” the wife was entitled to continued spousal support payments.

However, the Court of Appeals disagreed and reversed.  The Court of Appeals found that the term “cohabitation” did not have a plain meaning which contemplated some type of changed economic circumstances.  They stated that the meaning of “cohabitation” was not necessarily determined by whether the couple shared household expenses or functioned as a single economic unit. Rather, the word “cohabitation” was ambiguous as used in the separation agreement, and neither the dictionary nor New York caselaw supplied an authoritative or “plain” meaning.  The Court stated:


“cohabitation” . . . bring[s] to mind a variety of physical, emotional and material factors, and therefore might mean any number of things in a separation agreement, where otherwise unexplained in the text, depending on the parties’ intent. For example, the parties here might reasonably have meant “cohabitation” to encompass whether Mrs. Graev engaged in sexual relations with an unrelated adult; whether she and the unrelated adult commingled their finances or — just the opposite — whether she supported the unrelated adult financially; whether she and the unrelated adult shared the same bed; or some combination of these or other factors associated with living together as if husband and wife.

Accordingly, the Court of Appeals sent the case back to the lower court for further proceedings, presumably to allow the husband the opportunity to introduce evidence as to the parties’ intent as to the meaning of the word “cohabitation.”

It is obvious that matrimonial attorneys will now have to be quite specific in drafting divorce settlement agreements when using the term “cohabitation.”  Such agreements should now spell out in detail whether “cohabitation” means having sexual relations, sharing expenses, sharing a residence, or any other number of factors.

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