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Alimony for Cohabiters, Still, in 2012

Divorce is about the end of a relationship, and alimony is about its continuation beyond the finish line.
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Alimony is one of the most charged words in the English language. A word that opens the door to all kinds of heartache. Divorce. Lawyers. Money. Dependence. Resentment. Who owes what to whom, for how long and under what circumstances?

Connecticut's antiquated alimony laws -- like those of many states around the country, including New Jersey, Florida, and Oregon -- are being scrutinized by lawmakers, lawyers, and advocates. In Connecticut, some are committed to updating the laws. Others argue publicly that everything's fine while admitting privately that the family court system is a travesty. Even public supporters admit that five different judges will render five different decisions based on an identical set of facts.

Divorce is about the end of a relationship, and alimony is about its continuation beyond the finish line. The relationship is now entirely about money, and the money only goes one way. Recipients may feel they aren't getting enough, payers that they are paying too much. Few have a kind word for the clogged court system or the lawyers' fees that eat away at family resources.

One of the most fraught alimony issues concerns ongoing payments to ex-spouses who are cohabiting. Because so many more men pay alimony than women, most often it's men supporting ex-wives and new boyfriends, or boyfriends of many years. Even when payers are resigned to paying an ex-spouse, the equation changes when a new lover moves in. Resignation quickly morphs into resentment. And that spikes if the ex-husband has to support his ex, his children, his ex's boyfriend, and sometimes his children, who might all live in the marital home. But even with no children involved, being forced to support two able-bodied adults is a bitter pill to swallow.

It's an open secret -- or maybe not much of a secret at all -- that the new couple don't marry because they would lose the alimony. Sometimes it's $100 a week, sometimes $100 a day.

You'd think no one would have to swallow such a pill. If the marriage is long over and the recipient is in an established new relationship, the alimony should end, right? Well, no, not exactly.

In Massachusetts, where the state's 40-year-old alimony laws were just overhauled, cohabitation was updated to reflect 21st century social and economic realities. Alimony in Massachusetts can now be reduced or eliminated if the payer can show that the recipient has "maintained a common household with another person for a continuous period of three months." (For details, please see the new law on the Mass Alimony Reform website, Sect. 49(d))

With endorsement from Connecticut Alimony Reform, Connecticut legislators considered new alimony provisions earlier this year (Raised Bill No. 5509). They included provisions like those now in place in Massachusetts. Even though a good many family lawyers believe there are problems with the current cohabitation laws, the alimony reform package, including the cohabitation provisions, died in the Judiciary Committee.

Under current law, alimony payers may try to modify payments if the recipient is cohabiting, but proving it is a nearly impossible standard. The statute for reducing or ending alimony upon a showing of cohabitation, Section 46b-86(b), requires the payer to meet a two-part test. The payer must prove that the couple lives together and that there is a financially supportive relationship between them.

The statute gives judges unbridled discretion in making every decision related to alimony. Even when there is abundant evidence of cohabitation and of a financially interdependent relationship, judges may rule to keep the alimony in place, leading one petitioner to call the courthouse in Danbury, where his return trips to divorce court take place, "the Danbury slaughterhouse." Instead of his alimony going down, it's gone up, while his ex receives monthly funds from her boyfriend and "loans" to purchase real estate. Appeals can cost $50,000 -- and are often fruitless.

To try to prove cohabitation, payers must often hire private detectives and aggressive lawyers, and spend a fortune on discovery, which is the process of unearthing financial records, credit card bills, tax returns, and deeds and titles to houses, cars, and boats. For nearly everyone involved, this is distasteful in the extreme. It is easy to enlist children to take sides. Yet this is the statutory requirement in Connecticut.

Because the stakes are so high, recipients and their partners are easily tempted to hide resources and the nature and extent of their financial involvement. It's an open secret that gaming the system is commonplace. A good many people now understand that even when the payer can prove a financially supportive relationship, a judge may still look the other way. Why? I have two suspicions:

1. There's gender bias in the courts. In my opinion, many judges are from "the old school," and believe that women, even those who worked throughout their marriages, should still be "taken care of" by ex-husbands. Perhaps they still believe the out-dated stereotype of divorce: that men leave their wives for younger women and that they should "have to pay."

2. Unlike many other states, Connecticut's alimony laws have no guidelines and include no expectation that a recipient will ever have to become self-sufficient. By contrast, welfare recipients are given limits to being dependent, and child support ends on a date certain. Perhaps if the law imposed the idea of eventual self-sufficiency -- with exceptions for special cases -- judges could accept it more readily and apply it in more instances.

These are speculations. What's not speculative is that Connecticut's cohabitation laws, like those of several other states, are out-of-date and out-of-touch. They cause unnecessary acrimony for all family members, and they force long-divorced couples into ugly conflict and expense.

The alimony reform movement took off in Massachusetts, and has spread to a number of other states with a vengeance. Its most vocal opponents are divorce lawyers -- though many lawyers admit, more privately than publicly, that certain alimony laws should now be viewed through 21st century glasses. Though the alimony laws in many states are gender neutral, they're enforced with 1950s-era notions about men and women.

Many lawyers in Connecticut agree that the cohabitation laws need updating, but will they support future efforts to reform the laws -- or continue to oppose them?

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