Buren of proof for cohabitation

North Carolina Divorce Law Divorce and Separation Answers
1

This sort of goes to my other post about my ex and alimony.
One thing he’s threatening is to use as a ‘defense’ when he refuses to pay that he’s “suspicious” of my living arrangements. He knows I’m not literally living with my bf b/c I have my own home, and my girls live in it with me when they are here. But some nights when I Skype the girls, I am at my bf’s (at 6 pm), and he says he’s going to use that to allege that I spend too many nights there, or too much time there or some such thing.

Our agreement only states “cohabitation” according to the NC statute, which I’ve read, and it’s vague–says living as a man and wife. Well we are NOT, that’s for sure. I pay all my own bills, he pays his, we live in the same town, that’s it. Yes, I stay there some nights, he stays here some nights, it’s a mixed bag, but no, we are not “living” together, and he isn’t supporting me in any way, and for me that’s easy to prove, I have bills up the wazoo, and neighbors who would provide affidavits that they know me and have seen me at home.

So what is his burden of proof really, and would the judge take his suspicion at face value and allow that to delay the proceeding? IOW, if he shows up saying “I think she may be living with him, but I have no evidence, can I go get some?” Would the judge allow that, and let him not pay in the interim? Or would she force him to pay (this is a contract btw, NOT a court order in family court–it’s a civil matter I guess?) and say “come back when you have evidence”?

Seems so silly. I mean, if he does that, all I’d have to do is be home every night until the judge rules, even he must realize THAT. I’m also 800 miles away from where he lives, so he can’t exactly camp out in my driveway, he’d have to spend thousands on a P.I. to follow me around, or to my internet company to get my ISP data about where I’ve been and at what hours, but so what? Where I use my phone or computer at 9 pm at night doesn’t tell anyone where I’m LIVING.

Empty threat? OR something to worry about?

2

OH, also, according to my girls, his gf stays over their house plenty of nights (sounds like most), with her dog even. HE claims he can’t afford childcare, that’s why he wants child support from me, and/or no alimony obligation. Do I have any standing to say that he can’t dictate where I can live or with whom if he’s going to be semi-supporting his gf, feeding and housing HER too, and then claiming poverty when it comes to my kids?

3

You are correct that the definition of cohabitation is very vague. Every case that comes out on the issue continues to define what cohabitation really means. His suspicions will not be enough to stop alimony, but you should be prepared to defend against his claim and prove that you are not cohabitating if the issue does come up. If this goes to court, he will likely have evidence of your living situation and not just suspicious, so you should also keep track of things to provide as evidence such as how often you spend the night together.