Divorce attorney Nicole K. Levy explores a recent SJC decision that favors extending alimony payments based on premarital cohabitation.
The Supreme Judicial Court of Massachusetts stepped back into divorce law in a recent ruling, Connor v. Benedict (2019). There were two topics covered in Connor: Asset division, which we will cover in a future blog post, and alimony.
With respect to alimony, the Court in Connor focused on the impact of premarital cohabitation on the duration of alimony under the Alimony Reform Act (ARA). Under the ARA, the duration of alimony (i.e. how long alimony must be paid after the divorce) is determined based on the length of the marriage. Specifically, M.G.L.c. 208 s. 48 instructs courts to count the “…months from the date of legal marriage to the date of service of a complaint or petition for divorce” when calculating the duration of alimony. The longer the marriage, the longer the duration of alimony.
The statute also provides that “the court may increase the length of the marriage if there is evidence that the parties’ economic marital partnership began during their cohabitation period prior to the marriage.”
In Connor, the SJC provided important guidance for determining (1) whether alimony received from a prior divorce alters the period of premarital cohabitation; and (2) what constitutes an “economic marital partnership” for cohabitating couples prior to a marriage.
The Important Alimony-Related Facts in Connor
The Connor decision arose out of an appeal filed in the Middlesex Probate and Family Court following a trial before Hon. Kevin R. Connelly, now of the Plymouth Probate and Family Court. Importantly, the divorcing spouses in Connor had only been married for just over two years at the time the Complaint for Divorce was filed in 2014. However, the SJC found that the parties had lived together for about twelve years prior to the marriage.
When they first met in 2000, the wife was finalizing a divorce of her own that led to her receiving alimony and child support until 2011. According to the Court, for much of the time they resided together, the couple shared most of their expenses: splitting the cost of rent and a down payment on what would become the marital home, in addition to paying for furniture and vacations together. The husband had also held the wife out as his “domestic partner” to his employer for the purposes of the employee insurance plan, which is a term in the insurance policy for “two adults… in an ongoing and committed spouse-like relationship.” (The term “domestic partnership” has largely fallen into disuse in Massachusetts since the legalization of same-sex marriage in 2004.)
Notably, the parties separated for a stretch in 2004-2005, when “the wife relocated to Australia with her son in order to receive medical treatment”. However, the parties reunified after the wife returned to the US in 2005 and were eventually married in 2012. Following the marriage, “the wife again received health insurance through the husband's employer, at that point as his spouse.”
In June 2014, the husband filed for divorce. The next month, the wife filed a motion for temporary orders, which included a request for temporary alimony. This request was allowed, and the wife received alimony throughout the pendency of the divorce. Following a trial before Judge Connelly, a Judgment of Divorce Nisi entered in August of 2016.
Under the Judgment, the wife was awarded alimony “in the amount of $511 per week for a period of sixty-one months.” The trial court judge found that the length of the marriage was 2.25 years but tacked on an additional 6.33 years for the length of cohabitation (starting in 2005), based on evidence that the parties shared an “economic marital partnership” during the period of cohabitation.
Husband appealed, contending “that the judge erred in calculating the duration of the marriage for purposes of awarding alimony …”
Duration of Alimony and Premarital Cohabitation in Massachusetts
We have previously covered how cohabitation can increase alimony payments in Massachusetts. In essence, M.G.L.c. 208 s. 48 requires courts to count the “months from the date of legal marriage to the date of service of a complaint or petition for divorce” when they are determining the duration of alimony. Then, courts are allowed to add time to the length of the marriage “if there is evidence that the parties’ economic marital partnership began during their cohabitation period prior to the marriage.”
For cases involving a period of premarital cohabitation, the key question becomes: did the parties share an “economic marital partnership” during the premarital cohabitation? Determining whether an “economic marital partnership” existed is a fact-based analysis that varies from case to case. However, the Connor helps clarify the factors courts should examine in such cases.
Receiving Alimony from Prior Divorce Does Not Prevent a Future Economic Marital Partnership
In Connor, the former husband made the somewhat novel argument that because the wife’s received alimony from her previous marriage during the period of cohabitation, that no “economic marital partnership” could have existed. The husband argued that “the word ‘marital’ in the phrase ‘economic marital partnership’ instils the phrase with a requirement of monogamy,” and that this idea of monogamy was undermined with the financial assistance the wife was receiving from the prior husband. In essence, the husband argued that an “economic marital partnership” should be exclusive, and that a person (e.g. the wife) could not rely on alimony from a prior spouse while forming an “economic marital partnership” with a future spouse.
The court disagreed. The Court held that alimony alone does not create an “economic marital partnership” with a prior spouse because such a partnership “is premised, in part, on the parties’ conduct in furtherance of their life together.” Alimony from a prior spouse, on the other hand, is a product of a divorce. Additionally, other provisions of Massachusetts divorce law terminate alimony when a new economic marital partnership is formed, not vice versa.
What Creates an Economic Marital Partnership?
Prior to Connor, the leading case defining an “economic marital partnership” was a Supreme Judicial Court case from 2016, Duff-Kareores v. Kareores, in which the SJC had merely decided that the statutory terms “economic marital partnership,” “common household,” and “cohabitation” all described the same relationship, namely, one that “resembles, but is not equivalent to, a legal marriage.”
The Court’s Duff-Kareores v. Kareores analysis meant that the same test applies
1. Determining whether an “economic marital partnership” exists during premarital cohabitation; and
2. Determining whether a former spouse was cohabitating with a new partner after a divorce, such that “alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household, as defined in this subsection, with another person for a continuous period of at least 3 months.
Notably, the factors defining a “common household” under M.G.L.c. 208 s. 49(d)(1) therefore also apply to determining whether a “economic marital partnership” existed during a period of premarital cohabitation. In order to share a “common household” under the statute, the persons must “share a primary residence together with or without others.” The additional factors the Court may consider include:
(i) oral or written statements or representations made to third parties regarding the relationship of the persons;
(ii) the economic interdependence of the couple or economic dependence of 1 person on the other;
(iii) the persons engaging in conduct and collaborative roles in furtherance of their life together;
(iv) the benefit in the life of either or both of the persons from their relationship;
(v) the community reputation of the persons as a couple; or
(vi) other relevant and material factors.
Applying these factors, SJC the Connor held that the parties had, indeed, shared an “economic marital partnership” prior to their marriage. A specific factor that was considered was the wife’s use of the husband’s insurance coverage and that the husband “repeatedly represented his wife to his employer as his ‘domestic partner’” during the time of cohabitation.” Additionally, when the husband’s father died, he had referred to his wife’s son as the deceased’s grandson in the obituary. Combing these small—but important—facts regarding the cohabitation and the wife’s economic dependence on the husband, the Supreme Judicial Court found that there was an “economic marital partnership” sufficient to warrant an alimony duration that accounted for the period of cohabitation.
It is Surprisingly Easy to Prove “Economic Marital Partnership” in Massachusetts
Following the Duff-Kareores v. Kareores decision, commentators were somewhat surprised that the SJC had defined the “economic marital partnership” issue for premarital cohabitation so closely with the test for suspending or terminating alimony after a divorce when one spouse cohabitates with a new romantic partner in a “common household”. The prevailing view prior to Duff-Kareores was proving that a former spouse was cohabitating with a new partner in a “common household” after a divorce should be a relatively simple and common-sense process that had less to do with cost sharing than the fact that the former spouse was sharing a home with a new romantic interest.
In contrast, before Duff-Kareores, many commentators felt that extending alimony duration based on premarital cohabitation would require ample evidence of an especially close economic relationship that looked something like a common law marriage. Connor confirms that proving that cohabitating individuals were engaged in an “economic marital partnership” before their marriage is a relatively simple matter.
Indeed, when the ARA was first announced, many believed that the premarital cohabitation clause was largely included to account for same-sex partners, who were prohibited by law from marrying before 2004. The notion was that same-sex partners who were legally deprived of the right to marriage would have likely held themselves out as spouses in public, and that alimony would be extended under the ARA based on premarital cohabitation to account for their lack of legal rights. Accordingly, many were surprised when the Duff-Kareores suggested that extending alimony based on premarital cohabitation appeared appropriate for couples who simply lived together for a few years before getting married.
Although Connor focuses on the husband’s premarital provision to medical insurance to the wife as his “domestic partner”, the Court’s analysis does not appear to require that all couples refer to each other as “domestic partners” or common law spouses to qualify. Indeed, in describing premarital cohabitation, the SJC describes a period in which “the parties act like a married couple, and form the financial dependencies, crystalized in marriage, for which alimony later may compensate.”
Again, it bears mentioning that M.G.L.c. 208 s. 49(d)(1) – which provides that alimony will be suspended or terminated if a former spouse cohabitates with a new partner for at least three months following the divorce – appears to present a fairly low bar to establishing cohabitation for the purpose of ending alimony. Few would argue that showing cohabitation in this context requires proof that the partners held themselves out as spouses or blended all of their finances. Rather, it is generally enough to show that a former spouse is living full-time with a new romantic interest.
Although proving premarital cohabitation for the purpose of extending alimony may not be quite as easy as showing cohabitation for the purpose of suspending/terminating alimony, both Connor and Duff-Kareores suggest that a judge’s analysis should be nearly identical.
About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.