Imagine you go through 18 months of grueling divorce negotiations. You think you’ve come up with your final marital separation agreement (“MSA”) that you both finally agree. You’re sitting in front of the judge in the courtroom and he asks you questions about your agreement. The first question he asks you “Do you understand everything in the agreement.” Fearing not to lie , you honestly answer “No I don’t.” The judge’s eyebrows raise, the attorneys get fidgety and the judge asks you to explain.
You go on to explain that there are a few areas that are beyond your ability to comprehend. For example, your understanding is that alimony will terminate when your ex-wife cohabitates with another man. You further explain your understanding of what cohabitation is – moving in with another man – the conventional definition. The judge then responds with “So what don’t you understand?” You cower and respond “Nowhere in the agreement does it say that. Instead it says”..
“… the parties specifically reserves the right under Lepis, Crews and Weishaus cases and their progeny to seek a modification of the alimony based on changed circumstances.” And it goes on “in the event of the cohabitation of the wife with another adult in a relationship tantamount to marriage, alimony shall be reviewed consistent with the Gayet case and evolving case law.”
Why this is wrong
If you’re not a lawyer, you have no idea what this really means, and in the eyes of the judge it does not say what you want it to mean. There’s no way a non lawyer can understand the impact of putting these case references directly in the agreement, especially since evolving case law means that if a case in the future is resolved, suddenly the meaning of your agreement can completely change. From a lawyer’s perspective, I understand you need to put this wording in so you can find some obscure interpretation in the thousands of pages of case law, to present a way to get out of the requirement. If the wording was clear, how could there be two sides to argue about in court?
I believe it is irresponsible for a lawyer to put any references to any cases in any settlement agreement unless both parties that sign the agreement are lawyers. I can just see it when the Judge asks the question about the document you signed and what evolving case law that you were referring to when you signed it. Crickets. So how can you sign such a document? You cannot.
What most people think
A normal person might think that cohabitation is when two people are living together and most people would agree that if they share the same residence that is enough. Sounds reasonable. But by not putting your specific intentions in the agreement you open yourself up to interpretations of the court, and a series of arguments by the attorneys, using thousands and thousands of interpretations of evolving case law. This includes that a reduction of alimony will not be awarded unless there is an economic benefit to the wife of the cohabitation and if the relationship is tantamount to marriage.
What? Really, so if the ex-wife is paying rent to her new live-in boyfriend, she is not receiving an economic benefit from the live in relationship and could likely result in no termination of alimony. Who are they kidding? If the Ex-wife pays $1,000 in rent to her boyfriend, who then turns around and buys all the groceries and pays all the utility bills, and buys her some nice clothes, of course she is benefiting. The court should look at if her boyfriend is now benefiting economically as he is making an extra $12,000 in rent. Logically the courts should look at the economic benefit of the new couple. Common sense is lost on the courts in this regard though. The Ex-wife can simply show the cash receipts for the groceries and the new clothes and the canceled check for rent, don’t be surprised if the judge avoids common sense and rules to keep alimony in force.
Tantamount to Marriage = ?
The Tantamount to Marriage clause is equally confusing. Since Tantamount simple means equal in value, then I don’t have to point out that all marriages are different. Some people are married and don’t share the same bedroom, don’t talk to each other and some take separate vacations. Not sure how to measure the value of one relationship with another, but I am sure courts are confident they can figure it out. Right.
One little trick that some ex’s do is to get a mail box somewhere and use that as their mailing address, or get on a lease of a friend that is renting an apartment somewhere, so as to hide the fact they are cohabitating. One of the cases often cited requires the payor, the one seeking an alimony reduction, to prove their ex is cohabitating and prove that their ex is sleeping over their new boyfriend’s place. This encourages stalking, in my opinion. To avoid this, add a clause that the recipient of alimony install a GPS device or an app that can be used to determine where they spend their evenings. Again, if they refuse, you have your answer.
Never reference any case by name in your agreement. Always put in the exact meaning to which both parties agree. Also, include remedies in the agreement, which makes the contract enforceable. Include a clause that says the alimony termination is effective based on the date of the cohabitation, instead of the filing of the motion for adjustment.
See Changed Circumstances in Marital Separate Agreements
See Why are remedies missing from most Marital Separate Agreements?