I am currently separated and approaching the 1 year mark when I can file for divorce. About a month after the physical separation and prior to formalizing a separation agreement, my wife began seeing another man. She is classified as a dependent spouse and the separation agreement specifies I pay her monthly alimony in addition to child support for a fixed period of time (i.e., several years). About a month ago (and prior to the 1 yr waiting period) she began living with this man. My question is in regards to the alimony. Am I obligated to continue paying alimony if she begins cohabiting with someone else during the separation period? Are there circumstances where I would be required to make monthly alimony payments to someone who is cohabiting and in a committed relationship with another (employed) adult? My understanding is cohabitation negates the alimony. Since cohabitation is occurring prior to the formal divorce, should I have the separation agreement amended prior to being entered into the divorce decree (if she will agree to an altered alimony arrangement)? If I do not have it amended, Is there a risk if I just stop paying the alimony given her current living arrangements (it would be difficult fo her to deny she is cohabiting)? Things are amicable at this point and we are doing most of the legalities ourselves with minimal conflict and involvement of lawyers. I just want to know what my legal obligations are (with respect to alimony) and be sure I am protected if circumstances change (i.e., they break up).
Our statutes state that: “If a dependent spouse who is receiving postseparation support or alimony from a supporting spouse under a judgment or order of a court of this State remarries or engages in cohabitation, the postseparation support or alimony shall terminate.” - NC Gen Stat § 50-16.9 (b).
You’ll note that this is the case if alimony is set forth in a court order. Since your alimony obligation is set forth in a separation agreement rather than a court order, you will need to review the language your agreement - what does the agreement say will trigger the termination of alimony payments. Does it say cohabitation terminates the obligation? If your agreement reflects an intent for the payments to continue beyond cohabitation, then unfortunately cohabitation won’t terminate the alimony.
If the language in your agreement states that cohabitation ceases alimony payments, and your separation agreement has not been incorporated into a court order, then you can simply stop paying, and raise her cohabitation as a defense if/when she sues you for breach of contract. If the agreement has been incorporated into a court order you should file a motion to modify alimony, stating that you wish to terminate the obligation based on her cohabitation.