In the case of Smallwood v. Smallwood, the North Carolina Court of Appeals held that the trial court did not err in concluding that former wife and man she was dating did not voluntarily assume those rights, duties, and obligations which were usually manifested by married people, for purposes of former husband's cohabitation defense to former wife's request for alimony; while the court did determine that former wife and the man engaged in some domestic activities, it did not find an assumption of marital rights and duties extending beyond those found in an intimate friendship, such as joint financial obligations, sharing of a home, combining of finances, pooling of resources, or consistent merging of families.
North Carolina law defines, by statute, "cohabitation" as the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations. . . . In order to “find cohabitation, there must be evidence of: (1) a ‘dwelling together continuously and habitually’ of two adults and (2) a ‘voluntary mutual assumption of those marital rights, duties, and ‘obligations which are usually manifested by married people.’”
In Virginia, “‘the term “cohabit” means to live together in the same house as married persons live together, or in the manner of husband and wife.’” Cranwell v. Cranwell, 59 Va. App.155, 161, 717 S.E.2d 797, 800 (2011) (quoting Schweider v. Schweider, 243 Va. 245, 248, 415 S.E.2d 135, 137 (1992)). Indeed, “[t]he requirement that the payee ex-spouse and that party’s paramour be shown to have established and shared a common residence is firmly established in Virginia case law.” Pellegrin v. Pellegrin, 31 Va. App. 753, 764, 525 S.E.2d 611, 616 (2000)(citing Schweider, 243 Va. at 248-49, 415 S.E.2d at 137; Petachenko v. Petachenko, 232 Va. 296, 299, 350 S.E.2d 600, 602 (1986); Frey v. Frey, 14 Va. App. 270, 275, 416 S.E.2d 40, 43 (1992)). “Thus, if two individuals do not share a common residence, they are not cohabiting. Although ‘proof of a common or shared residence does not itself establish cohabitation,’ sharing a common residence is a ‘requirement’ for cohabitation.” Cranwell, 59 Va. App. at 162, 717 S.E.2d at 800 (quoting Pellegrin, 31 Va. App. at 764, 525 S.E.2d at 616). If the finder of fact concludes that two individuals have not established and shared a common residence, then there is no need to perform further analysis or consider additional factors—the two individuals are not cohabiting.
This is not the first time I’ve addressed the issue of cohabitation in spousal support cases here at the Charlottesville Divorce Lawyer Blog. Please click here, here, here, here, and here for more information.
-Rob Hagy, Charlottesville Divorce and Spousal Support Lawyer. For help with your spousal support issues, please contact me at (434)293-4562 or email me at email@example.com.