The Supreme Court recently ruled that an individual was required to continue paying alimony because his ex-wife’s relationship with a male did not rise to the level of “living openly or cohabitating with a member of the opposite sex.”

If you are required to pay alimony to your former spouse or if you are receiving alimony from your former spouse, it is always best to consult with a lawyer before asserting (or denying) that cohabitation is occurring. In the case of Meyers v. Meyers, the parties were divorced in 2006 after eighteen years of marriage.

Under the terms of the decree, Mr. Meyers was required to pay alimony to his former spouse. Following the divorce, Mrs. Meyers moved into the residence of her parents. In addition to Mrs. Meyers, several foster children resided in the home.

Mr. Meyers believed that his former spouse and a male foster child identified as M.H. were engaging in a sexual relationship. He then filed a petition to modify the divorce decree seeking to terminate the award of alimony. The trial court received testimonial evidence with regard to the allegations. The judge agreed with Mr. Meyers and terminated the alimony.

Mrs. Meyers then appealed that decision to the intermediate appellate court. That court reversed the decision of the trial court which terminated alimony. Mr. Meyers then persuaded the Supreme Court to hear the matter. It ruled that Mr. Meyers did not present sufficient evidence to justify the termination of alimony.

In Alabama, the issue of whether a former spouse is living openly or co-habitating with a member of the opposite sex is a question of fact to be determined by the trial judge. “Cohabitation” requires more than an occasional sexual encounter, but it does not necessarily require a habitual living arrangement. Factors to be considered are: (i) permanency of the relationship coupled with more than occasional sexual activity; (ii) payment of debts by the former spouse’s cohabitant; (iii) purchases for the former spouse by the cohabitant, such as clothing and the like; (iv) whether the cohabitant maintained the household by cleaning, cooking, washing and yardwork; and (v) whether the cohabitant is receiving mail, keeping clothes at the residence, or using the address for identification purposes.

Mr. Meyers presented evidence that M.H. referred to Mrs. Meyers as his “girlfriend,” that the two of them frequently flirted with each other, that the two exhibited occasional jealousy, and that the two acted, in the view of the witnesses, like boyfriend and girlfriend.

This is clearly insufficient to constitute cohabitation. So, again, if you have questions about whether the conduct of your former spouse rises to the level of cohabitation, or if you are receiving alimony and want to know about the implications of a relationship with a member of the opposite sex, always consult with a lawyer for guidance in this most tricky aspect of family law.