Couples living together without the formality of marriage is no longer a rarity. Many of these couples may never marry, but generally are both single, having been divorced or never married. In some cases, however, one party may still be married to another and in the process of a divorce. The impact of that relationship on the financial aspects of the pending divorce is an issue for the domestic relations court to consider.
In a recent Ohio case, husband asserted that wife was cohabiting with a male paramour so as to preclude the court from granting wife spousal support. The trial court granted wife spousal support, but ordered that it would terminate upon proof that wife was cohabiting after the divorce.
A finding of cohabitation must be supported by sufficient evidence to establish that the parties share financial responsibilities and consortium similar to a marriage. The Ohio court held that there was insufficient evidence to establish cohabitation as defined in law. Even had there been sufficient evidence to establish cohabitation, it was not mandatory for the court to deny wife spousal support. Cohabitation during a marriage may be considered by the court as a factor in determination of the amount and duration of spousal support. Other Ohio courts have specifically held that cohabitation does not automatically bar an award of temporary or permanent spousal support. There is also no requirement that a court provide for termination of support after divorce when a spouse cohabits.
An Ohio reviewing court held that the trial court sufficiently considered the factors mandated by statute. The court considered the length of the marriage, wife's health, and husbands earning power when it ordered spousal support. The reviewing court also held it was not inconsistent to order spousal support after the divorce, although cohabitation was alleged, and then to order termination of the support upon proof of cohabitation.
While it is logical that one should not financially support a former spouse who is living with someone else in a relationship equivalent to marriage, proof of the relationship is a matter of fact to be determined by the court. The factual determination must be made whether the issue is raised during the divorce case or after.
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