Cohabitation and the Discontinuation of Maintenance

The Courts Below: An Unambiguous Term

The parties in Graev v. Graev, — N.E.2d —-, 2008 WL 4620698 (N.Y., 10/21/08), had entered into a separation agreement in 1997. The agreement required the husband to pay the wife spousal support of $10,000 per month until August 2009 or the occurrence of one of four “termination events”: 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) susbstantially consecutive days.” The agreement, however, did not specifically define “cohabitation.”

Some years later, the husband hired a private detective to shadow the wife, suspecting that she had begun cohabiting with a man. Records of the surveillance showed that the wife had been living in her vacation home with an adult male (referred to as MP) for at least 60 substantially consecutive days. Based on this information, the husband advised the wife in September 2004 that he was terminating support payments as of that month. In response, the wife moved Supreme Court to enforce the settlement agreement's maintenance provisions. She claimed that she and her male friend were not “cohabiting” within the legal meaning of that term because they had not commingled their finances in any way and her male friend maintained his own home in Connecticut. She also asserted that they were not having a sexual relationship, due to her lack of desire for sex and her friend's physical inability to have sex. She claimed that “use [of] the word 'cohabitation' ' rather than 'living together' or 'residing' ' plainly mean[t] having sexual relations.”

The Supreme Court determined in 2006 that an essential element of cohabitation was a shared residence with shared household expenses and that the couple must function as an economic unit. As this was not the situation with the wife and her friend, that court found that the wife was entitled to continued maintenance payments. The husband appealed.

Before the Appellate Division, the husband again asserted that the word “cohabitation” was ambiguous under New York law. The court disagreed, finding that “[a] review of the New York case law shows that in the context of these types of separation agreements, the term cohabitation has a plain meaning which contemplates changed economic circumstances, and is not ambiguous ' . [I]t is ' sensible to presume that attorneys using a term such as 'cohabitation' in a separation agreement are aware of the judicial decisions construing the term.” Thus, although the appellate court conceded that contracting couples could define “cohabitation” in any way they liked for the purposes of their own separation agreements, absent a stated definition the courts would interpret the term to mean an intermingling of economic interests between the ex-spouse and a new friend or paramour. A sexual relationship or a couple's living under the same roof alone would not suffice.

Taking these conclusions into consideration, the appellate court determined that the wife and her friend were not cohabiting, as they had not commingled their finances in any way, although they had once had a sexual relationship and had spent more than 60 substantially consecutive nights under the same roof.

Court of Appeals Reverses

The Court of Appeals looked back on the history of the Graev case as it moved through the lower courts and noted one significant fact: The parties themselves had wavered
between claiming the definition
of “cohabitation” was settled to claiming that it was ambiguous and remained undefined by New York law. Noted the court in this regard:

Initially, Mr. Graev claimed that Mrs. Graev and MP were cohabiting because MP stayed overnight in Mrs. Graev's house for 60 substantially consecutive days, and shared a close social, familial-like relationship. Mrs. Graev objected that “cohabitation” did not mean “living together,” and “plainly” meant only “having sexual relations.” After the motion court ruled that “cohabitation” encompassed many different elements, and not just sexual intimacy, Mr. Graev argued that the word “cohabitation” was, in fact, ambiguous, and therefore extrinsic evidence was required to flesh out its meaning for these parties. Mrs. Graev then tacked about, contending that “cohabitation” was, after all, synonymous with “living together,” and that the “plain meaning of [cohabitation] as construed by the case law” entailed a shared residence, shared household expenses and living together as an economic unit.

Obviously, said the court, confusion still remains in New York over just what “cohabitation” means when discussing the cessation of support. Because the agreement itself was not clear on the issue, the court held that the case should be remitted to Supreme Court, where extrinsic evidence as to the parties' intent could be introduced and evaluated.

One thing the Court of Appeals did unequivocally do away with was the notion that co-mingling of finances is an indispensable aspect of cohabitation. Although it is a factor to be considered, said the court, lack of economic interdependence will not, on its own, refute an accusation that one party to a separation agreement is cohabiting with someone.

A New Set of Problems

In her dissenting opinion, Justice Victoria A. Graffeo argued that the Graev parties' agreement spelled out quite clearly how proof of cohabitation would be made: After 60 nights under one roof, the wife and any unrelated adult would be considered to be cohabiting.

Justice Graffeo asserted that, contrary to the majority's holding, the term “cohabitation” has “a commonly-accepted core meaning: habitually living with an unrelated adult in the same residence while engaged in an intimate relationship without being legally married to that person (see, e.g., Black's Law Dictionary 277 [8th ed] ['The fact or state of living together, esp. as partners in life, usu. with the suggestion of sexual relations'].”

Had the parties not delineated a time frame (here, 60 days), Judge Graffeo would have had more difficulty coming to the conclusion she did. Said the judge, “[T]he use of the term 'cohabitation' without elaboration or conditions is capable of causing ambiguity. This is because a living arrangement becomes cohabitation only if it is habitual and this requirement may not be quantified in every situation. But the parties in this case were careful to avoid this pitfall by indicating that the benchmark would be a specific duration ' .This was sufficient to make the cohabitation clause here unambiguous.” So, here, where the husband had shown that his ex-wife was cohabiting with a man (living under the same roof while unmarried) for the contract's requisite 60 days, his support obligation should have terminated.

Judge Graffeo's dissent predicted that the majority's ruling will cause ongoing problems. “First, it will create a proliferation of litigation in virtually every case where these commonly-used cohabitation/maintenance termination provisions are sought to be enforced,” she wrote. “And courts, in turn, will have little helpful evidence when attempting to evaluate the issue other than the self-interested testimony of the parties' themselves ' .The majority's rule creates uncertainty, making it difficult for parties to understand their obligations and responsibilities.”

Mrs. Graev's attorney, Myrna Felder, said after the decision that the majority's holding would lead to uncertainty. However, she also found fault with the dissent, which agreed with the majority that economic interdependence is not the sine qua non of cohabitation. “Until today,” said Felder, “over the course of the last 20 years, the appellate courts seem to have had no trouble construing these clauses as unambiguous and requiring that there be an economic element to the cohabitation.”

What seems more troublesome is the number of agreements out there that do not explicitly define “cohabitation.” Will couples with such agreements have to go to court to hammer out the details of what they probably thought (at the time of signing) was a well-defined contract? And how will a court weigh conflicting, perhaps self-serving, definitions offered by the former husband and wife?

Elliott Scheinberg, who wrote an amicus curiae in support of Mr. Graev's position on behalf of the Academy of Matrimonial Lawyers, said in an interview that the majority's ruling “leaves room for a lot of potential mischief or frivolous litigation” over the interpretation of cohabitation clauses. “The clear message is, from here on in; you have to be very, very careful when you draft an agreement,” said Scheinberg. “At this point, a cohabitation clause requires more surgical precision.”

Janice G. Inman is Editor-in-Chief of this newsletter.

When discussing separation agreements that contemplate cessation of maintenance payments if a former spouse cohabits with another adult, most divorcing parties likely take that term ' “cohabit” ' to have its common meaning. That is, that the former spouse is in an intimate relationship with a boyfriend or girlfriend, as the case may be, and lives in the same home with them.

The matrimonial practitioner might explain that a different meaning may apply, in accordance with case law interpretations of the term “cohabit.” For example, the Appellate Division, First Department, has defined “cohabitation” as a living arrangement in which the parties share financial concerns.

Now comes a recent ruling by the Court of Appeals that puts a whole new, and subjective, definition to the term “cohabitation”: At the time that the agreement was entered into, what did the parties themselves mean when they stated the word “cohabit”?

The Courts Below: An Unambiguous Term

The parties in Graev v. Graev, — N.E.2d —-, 2008 WL 4620698 (N.Y., 10/21/08), had entered into a separation agreement in 1997. The agreement required the husband to pay the wife spousal support of $10,000 per month until August 2009 or the occurrence of one of four “termination events”: 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) susbstantially consecutive days.” The agreement, however, did not specifically define “cohabitation.”

Some years later, the husband hired a private detective to shadow the wife, suspecting that she had begun cohabiting with a man. Records of the surveillance showed that the wife had been living in her vacation home with an adult male (referred to as MP) for at least 60 substantially consecutive days. Based on this information, the husband advised the wife in September 2004 that he was terminating support payments as of that month. In response, the wife moved Supreme Court to enforce the settlement agreement's maintenance provisions. She claimed that she and her male friend were not “cohabiting” within the legal meaning of that term because they had not commingled their finances in any way and her male friend maintained his own home in Connecticut. She also asserted that they were not having a sexual relationship, due to her lack of desire for sex and her friend's physical inability to have sex. She claimed that “use [of] the word 'cohabitation' ' rather than 'living together' or 'residing' ' plainly mean[t] having sexual relations.”

The Supreme Court determined in 2006 that an essential element of cohabitation was a shared residence with shared household expenses and that the couple must function as an economic unit. As this was not the situation with the wife and her friend, that court found that the wife was entitled to continued maintenance payments. The husband appealed.

Before the Appellate Division, the husband again asserted that the word “cohabitation” was ambiguous under New York law. The court disagreed, finding that “[a] review of the New York case law shows that in the context of these types of separation agreements, the term cohabitation has a plain meaning which contemplates changed economic circumstances, and is not ambiguous ' . [I]t is ' sensible to presume that attorneys using a term such as 'cohabitation' in a separation agreement are aware of the judicial decisions construing the term.” Thus, although the appellate court conceded that contracting couples could define “cohabitation” in any way they liked for the purposes of their own separation agreements, absent a stated definition the courts would interpret the term to mean an intermingling of economic interests between the ex-spouse and a new friend or paramour. A sexual relationship or a couple's living under the same roof alone would not suffice.

Taking these conclusions into consideration, the appellate court determined that the wife and her friend were not cohabiting, as they had not commingled their finances in any way, although they had once had a sexual relationship and had spent more than 60 substantially consecutive nights under the same roof.

Court of Appeals Reverses

The Court of Appeals looked back on the history of the Graev case as it moved through the lower courts and noted one significant fact: The parties themselves had wavered
between claiming the definition
of “cohabitation” was settled to claiming that it was ambiguous and remained undefined by New York law. Noted the court in this regard:

Initially, Mr. Graev claimed that Mrs. Graev and MP were cohabiting because MP stayed overnight in Mrs. Graev's house for 60 substantially consecutive days, and shared a close social, familial-like relationship. Mrs. Graev objected that “cohabitation” did not mean “living together,” and “plainly” meant only “having sexual relations.” After the motion court ruled that “cohabitation” encompassed many different elements, and not just sexual intimacy, Mr. Graev argued that the word “cohabitation” was, in fact, ambiguous, and therefore extrinsic evidence was required to flesh out its meaning for these parties. Mrs. Graev then tacked about, contending that “cohabitation” was, after all, synonymous with “living together,” and that the “plain meaning of [cohabitation] as construed by the case law” entailed a shared residence, shared household expenses and living together as an economic unit.

Obviously, said the court, confusion still remains in New York over just what “cohabitation” means when discussing the cessation of support. Because the agreement itself was not clear on the issue, the court held that the case should be remitted to Supreme Court, where extrinsic evidence as to the parties' intent could be introduced and evaluated.

One thing the Court of Appeals did unequivocally do away with was the notion that co-mingling of finances is an indispensable aspect of cohabitation. Although it is a factor to be considered, said the court, lack of economic interdependence will not, on its own, refute an accusation that one party to a separation agreement is cohabiting with someone.

A New Set of Problems

In her dissenting opinion, Justice Victoria A. Graffeo argued that the Graev parties' agreement spelled out quite clearly how proof of cohabitation would be made: After 60 nights under one roof, the wife and any unrelated adult would be considered to be cohabiting.

Justice Graffeo asserted that, contrary to the majority's holding, the term “cohabitation” has “a commonly-accepted core meaning: habitually living with an unrelated adult in the same residence while engaged in an intimate relationship without being legally married to that person (see, e.g., Black's Law Dictionary 277 [8th ed] ['The fact or state of living together, esp. as partners in life, usu. with the suggestion of sexual relations'].”

Had the parties not delineated a time frame (here, 60 days), Judge Graffeo would have had more difficulty coming to the conclusion she did. Said the judge, “[T]he use of the term 'cohabitation' without elaboration or conditions is capable of causing ambiguity. This is because a living arrangement becomes cohabitation only if it is habitual and this requirement may not be quantified in every situation. But the parties in this case were careful to avoid this pitfall by indicating that the benchmark would be a specific duration ' .This was sufficient to make the cohabitation clause here unambiguous.” So, here, where the husband had shown that his ex-wife was cohabiting with a man (living under the same roof while unmarried) for the contract's requisite 60 days, his support obligation should have terminated.

Judge Graffeo's dissent predicted that the majority's ruling will cause ongoing problems. “First, it will create a proliferation of litigation in virtually every case where these commonly-used cohabitation/maintenance termination provisions are sought to be enforced,” she wrote. “And courts, in turn, will have little helpful evidence when attempting to evaluate the issue other than the self-interested testimony of the parties' themselves ' .The majority's rule creates uncertainty, making it difficult for parties to understand their obligations and responsibilities.”

Mrs. Graev's attorney, Myrna Felder, said after the decision that the majority's holding would lead to uncertainty. However, she also found fault with the dissent, which agreed with the majority that economic interdependence is not the sine qua non of cohabitation. “Until today,” said Felder, “over the course of the last 20 years, the appellate courts seem to have had no trouble construing these clauses as unambiguous and requiring that there be an economic element to the cohabitation.”

What seems more troublesome is the number of agreements out there that do not explicitly define “cohabitation.” Will couples with such agreements have to go to court to hammer out the details of what they probably thought (at the time of signing) was a well-defined contract? And how will a court weigh conflicting, perhaps self-serving, definitions offered by the former husband and wife?

Elliott Scheinberg, who wrote an amicus curiae in support of Mr. Graev's position on behalf of the Academy of Matrimonial Lawyers, said in an interview that the majority's ruling “leaves room for a lot of potential mischief or frivolous litigation” over the interpretation of cohabitation clauses. “The clear message is, from here on in; you have to be very, very careful when you draft an agreement,” said Scheinberg. “At this point, a cohabitation clause requires more surgical precision.”

Janice G. Inman is Editor-in-Chief of this newsletter.