Cohabitation And Alimony In Florida

Last updated on June 15, 2023
Supportive Relationships And Alimony In Florida

Almost every Florida divorce has the possibility of an alimony award from one spouse to the other.

“In a proceeding for dissolution of marriage, the court may grant alimony to either party.” Fla. Stat. Sec. 61.08(1)

Alimony is awarded in a Florida divorce “[i]f the court finds that a party has a need for alimony or maintenance and that the other party has the ability to pay alimony or maintenance” Fla. Stat. Sec. 61.08(2)

If the ex-spouse receiving alimony moves in with a boyfriend, girlfriend or gets remarried, the presumption is that the new partner is now supporting the ex-spouse…so the old ex-spouse is automatically relieved of their obligation to pay alimony. This is not the case under Florida law.

Cohabitation Is A Basis For Modifying Alimony After A Florida Divorce

Florida’s statutes and case law allow for a modification of alimony if the alimony-receiving ex-spouse is cohabitating with someone. In lieu of relying strictly on cohabitation, Florida law investigates the broader concept of “a supportive relationship.”

“The court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides.” Fla. Stat. Sec. 61.14(1)(b)

The burden to prove a supportive relationship rests with the person trying to reduce or terminate alimony (the alimony payor).

“On the issue of whether alimony should be reduced or terminated under this paragraph, the burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists.” Fla. Stat. Sec. 61.14(1)(b)

Preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” Black’s Law Dictionary (11th ed. 2019)

Proving a supportive relationship can require any kind of evidence: photos of a car outside a house night after night, credit card receipts showing expenses that have and have not been paid, and/or the deposition of the new partner.

Florida alimony attorney

The Florida statute lays out eleven factors that a court can consider to establish if a supportive relationship exists.

“In determining whether an existing award of alimony should be reduced or terminated because of an alleged supportive relationship between an obligee and a person who is not related by consanguinity or affinity and with whom the obligee resides, the court shall elicit the nature and extent of the relationship in question. The court shall give consideration, without limitation, to circumstances, including, but not limited to, the following, in determining the relationship of an obligee to another person:

a. The extent to which the obligee and the other person have held themselves out as a married couple by engaging in conduct such as using the same last name, using a common mailing address, referring to each other in terms such as “my husband” or “my wife,” or otherwise conducting themselves in a manner that evidences a permanent supportive relationship.

b. The period of time that the obligee has resided with the other person in a permanent place of abode.

c. The extent to which the obligee and the other person have pooled their assets or income or otherwise exhibited financial interdependence.

d. The extent to which the obligee or the other person has supported the other, in whole or in part.

e. The extent to which the obligee or the other person has performed valuable services for the other.

f. The extent to which the obligee or the other person has performed valuable services for the other’s company or employer.

g. Whether the obligee and the other person have worked together to create or enhance anything of value.

h. Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property.

i. Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support.

j. Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support.

k. Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so.” Fla. Stat. Sec. 61.14(2)

Proving a supportive relationship is a loosey goosey concept that, fundamentally, only requires proving some kind of change.

“Although the supportive relationship concept is specifically defined by statute, it is in essence a substantial change in circumstances.” Baumann v. Baumann, 22 So. 3d 719 – Fla: Dist. Court of Appeals, 2nd Dist. 2009

The standard of a change in circumstances is that simple. Alimony can be modified if “the circumstances or the financial ability of either party changes.” Fla. Stat. Sec. 61.14(1)(a)

“To obtain a modification under section 61.14(1)(a), the trial court must make a determination that: (1) there was a substantial change in circumstances; (2) the change was not contemplated at the time of the final judgment of dissolution; and (3) the change is sufficient, material, involuntary, and permanent in nature.” Murphy v. Murphy, 201 So. 3d 18 – Fla: Dist. Court of Appeals, 3rd Dist. 2013

If the change in circumstances is cohabitation. An even simpler equation is considered.

“To find a sufficient change in circumstances to warrant a reduction or the termination of alimony based on cohabitation, a trial court is required to consider whether either of the following two factors is present: “[1] whether the cohabitant provides support to the recipient spouse, or [2] whether the recipient spouse contributes to the support of the cohabitant.” Murphy v. Murphy, 201 So. 3d 18 – Fla: Dist. Court of Appeals, 3rd Dist. 2013

Proving The Level Of Support During Cohabitation In Order To Modify Alimony In Florida

If a supporting relationship exists, the supported ex-spouse should be the one to explain to the court the extent of the support.

“Since the Former Wife is the better source with regard to her financial needs, the burden is on her as the recipient to demonstrate that her financial need as originally established upon dissolution continues to exist despite the existence of the supportive relationship.” Baumann v. Baumann, 22 So. 3d 719 – Fla: Dist. Court of Appeals, 2nd Dist. 2009

Once the cohabitation and the contribution are established, the court has the power to modify the alimony to a more appropriate alimony amount (possibly nothing).

“The trial court must make factual findings and determine whether those facts establish a “supportive relationship.” This determination requires an interpretation of the statute and an application of the law to the facts. If the trial court concludes that a “supportive relationship” exists, it has the discretion to reduce or terminate the alimony obligation.” Gregory v. Gregory, 128 So. 3d 926 – Fla: Dist. Court of Appeals, 5th Dist. 2013

Further tests of how to prove a supportive relationship and reduce alimony have been proposed by various Florida courts.

“To address a petition for the reduction or termination of alimony under section 61.14(1)(b), the circuit court must employ an analysis that may involve four steps. First, the circuit court must “elicit the nature and extent of the relationship in question.” § 61.14(1)(b)(2). To accomplish this task, the circuit court must consider and make findings concerning the factors listed in section 61.14(1)(b)(2) and any other pertinent circumstances.  In the second step, based on its findings, the circuit court must determine whether the facts establish a supportive relationship.. If the circuit court concludes that a supportive relationship does exist, then it must decide whether to reduce or terminate the alimony obligation. In the third step, the circuit court must consider the relevant economic factors for determining an award of separate maintenance or alimony outlined in section 61.08(2).  In the fourth step, having considered the relevant economic factors, the circuit court must determine whether to reduce or terminate the Former Wife’s alimony and, if to reduce it, by how much.” King v. King, 82 So. 3d 1124 – Fla: Dist. Court of Appeals, 2nd Dist. 2012 (citations and quotes omitted).

Once the supportive relationship is established by the evidence, the obvious defense is that the new partner, boyfriend, girlfriend, lover does not really help the alimony-receiving spouse that much.

“The impact that a third party cohabitant’s contributions, financial or otherwise, may have on the former spouse’s need is merely a relevant consideration as to whether to reduce or terminate alimony after a determination is made that a supportive relationship exists.” Murphy v. Murphy, 201 So. 3d 18 – Fla: Dist. Court of Appeals, 3rd Dist. 2013

“Certainly, if a payor spouse establishes that the recipient spouse is being totally supported by another, a “supportive relationship” likely exists… In determining what level of partial support is required to establish a “supportive relationship”…the question of whether the parties were supporting each other turned on whether either party benefited financially from the contributions of the other” Buxton v. Buxton, 963 So. 2d 950 – Fla: Dist. Court of Appeals, 2nd Dist. 2007

Alimony will not be modified if a “trial court [finds] that [a wife] was in a supportive relationship, but also made detailed and extensive findings that the relationship had no net effect on her need for alimony.” Overton v. Overton, 92 So. 3d 253 – Fla: Dist. Court of Appeals, 1st Dist. 2012

The analysis doesn’t need to be that mathematical to terminate alimony.

For example, “a ten-plus-year relationship in which the[ new couple] share a house, a bed, all household chores, and all household expenses. Both their social lives and their living expenses are interdependent. [Lack of evidence of support is not enough] to outweigh the other evidence showing that the relationship is the equitable equivalent of a remarriage.” Buxton v. Buxton, 963 So. 2d 950 – Fla: Dist. Court of Appeals, 2nd Dist. 2007

The law in Florida does not consistently require the payee ex-spouse to prove they need alimony after a supportive relationship is proven. The 4th district says a supportive relationship requires a modification of alimony.

If there is an “affirmative finding by the trial court that the former wife is in a supportive relationship, some reduction, if not termination, in alimony is warranted.” French v. French, 4 So. 3d 5 – Fla: Dist. Court of Appeals, 4th Dist. 2009

Additional Considerations When Modifying Alimony After Proving Cohabitation In Florida

Obviously, only the alimony receiver’s supportive relationship matters for the purposes of reducing or terminating alimony. The alimony payor’s new relationships are irrelevant.

“[F]or purposes of the alimony statute, a supportive relationship refers only to a payee’s relationship, not to a payor’s. [T]he “supportive relationship” concept is relevant only to the payee spouse’s need for alimony.” Morrell v. Morrell, 113 So. 3d 857 – Fla: Dist. Court of Appeals, 2nd Dist. 2012

To avoid the complicated process of proving a supportive relationship and the subsequent extent of that support, the parties can contract for specific terms upon which alimony will reduce or cease. A contracted requirement for cohabitation terminating alimony is much clearer for all parties than the Florida statute and case law.

“[I]f the language of the agreement `indicates a clear intention by the parties that the agreed-upon provisions for alimony would be controlling, and that its terms would be modifiable only as authorized therein,’ then the language is sufficient to operate as an implied waiver of any other ground for modification.” Cunningham v. Cunningham, 499 So.2d 880, 882 (Fla. 1st DCA 1986)

“Courts in [Florida] have long recognized that the statutory right to petition for modification of an alimony award may be intentionally or impliedly waived and that the waiver may be stated in express terms or through interpretation of the agreement as a whole.” Smith v. Smith, 110 So. 3d 108 – Fla: Dist. Court of Appeals, 4th Dist. 2013

People often get into supportive relationships before they are finally divorced. You cannot modify alimony based on a supportive relationship that already existed at the time of the last alimony order.

A modification of alimony “can only be based on changed conditions occurring since entry of the prior award or modification thereto.” Ferguson v. Ferguson, 921 So.2d 796, 797 (Fla. 5th DCA 2006) 

Any motion to modify alimony is only retroactive to the date of filing.

“[T]he court may modify an order of support, maintenance, or alimony by increasing or decreasing the support, maintenance, or alimony retroactively to the date of the filing of the action” Fla. Stat. Sec. 61.14(1)(a)

If the parties contracted in their marital settlement agreement for the alimony to end upon cohabitation…the alimony ends upon cohabitation not upon the filing date.

“[C]ohabitation clause which allows for the termination of alimony for cohabitation can be applied retroactively and require repayment.” Singer v. Singer, 38 So. 3d 889 – Fla: Dist. Court of Appeals, 4th Dist. 2010

A supportive relationship’s existence does not automatically bar an increase in alimony.

“If there is a change of circumstances either party may apply for an increase or decrease in alimony.” Linstroth v. Dorgan, 2 So. 3d 305 – Fla: Dist. Court of Appeals, 4th Dist. 2008 (emphasis mine)

“[M]odification require[s] evidence of both cohabitation and a change in circumstances concerning the recipient spouse’s needs.” Buxton v. Buxton, 963 So. 2d 950 – Fla: Dist. Court of Appeals, 2nd Dist. 2007

Every modification of alimony goes to a full hearing. After all, what does the cohabitating alimony-receiving spouse have to lose? So, be prepared to investigate and argue whether cohabitation exists and to what extent the new roommate/boyfriend/girlfriend/spouse pays towards this new relationship.

To discuss modifying alimony due to cohabitation, contact my Naples, Florida family law firm to speak with an experienced Florida divorce attorney.

Topic Description
Alimony Award in Florida Divorce Alimony can be awarded if one party needs financial support and the other has the ability to pay (Fla. Stat. Sec. 61.08(2)).
Cohabitation and Alimony Modification Alimony can be modified in Florida if the receiving ex-spouse cohabitates with someone and a supportive relationship exists (Fla. Stat. Sec. 61.14(1)(b)).
Burden of Proof The burden to prove a supportive relationship exists lies with the alimony payor (Fla. Stat. Sec. 61.14(1)(b)).
Preponderance of the Evidence The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force (Black’s Law Dictionary, 11th ed. 2019).

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