As divorce lawyers in Charleston, South Carolina, we get many questions about our state’s alimony laws. One question is whether living with another (cohabitation) in South Carolina can impact a person’s alimony payments. While many people know that alimony terminates upon the remarriage of an ex-spouse who receives alimony, some people overlook that living with a romantic partner may also cause alimony to be terminated. The purpose of this law is to prevent the loophole of someone living with and sharing expenses with their partner but deciding not to marry to keep the alimony. This article explains how a former spouse’s “continued cohabitation” can terminate alimony.
What is South Carolina’s Law about Terminating Alimony When You Live with Someone for 90 Days?
Section 20-3-13(B)(6) of South Carolina’s Code of Laws reads as follows:
For purposes of this subsection and unless otherwise agreed to in writing by the parties, ‘continued cohabitation’ means the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days. The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement.
What is an Example of Continued Cohabitation Under South Carolina Law?
Sometimes, it may be obvious that two people are living together or “continuously cohabitating.” For example, in one case, the SC Court of Appeals held that alimony should be terminated because two people “continuously cohabitated.” In that case, the former spouse’s daughter testified that the boyfriend had furniture, clothes, and other belongings when she went to her mom’s house. He parked in the garage, and he and the mother picked out paint colors together. The boyfriend also moved bedroom furniture and a TV into the spare room so his son had a place when he was at the house. The daughter did not believe the boyfriend had another place where he stayed. The parties’ other child testified that the mother and her boyfriend strategically planned nights apart, such as staying with his parents for a night to avoid the 90-day rule. The mother and her boyfriend bought groceries together, and he kept his food at the house. The Court of Appeals found that they continuously cohabitated for 90 days and that the termination of alimony was proper.
What Are Some Examples of What Isn’t Continued Cohabitation Under South Carolina Law?
However, there have been other cases where it seemed that two parties may have lived together, but the courts did not terminate alimony. For example, in a 2008 Court of Appeals case, the ex-wife lived in a condominium complex with numbered parking spots. The ex-wife’s two parking spaces were labeled “302” and “302-Visitor.” On multiple occasions, the ex-wife parked her car in “302,” and the boyfriend parked his vehicle in “302-Visitor” overnight. Also, the boyfriend answered the door when the ex-wife was served with a lawsuit to terminate alimony. However, there was plenty of evidence for the court to find that the boyfriend did not “reside” with the ex-wife, who was receiving alimony. In fact, the ex-husband’s private investigator could not say he was sure that the boyfriend lived there. Also, the ex-wife had several witnesses who testified that the ex-wife did not live with her boyfriend. It is unclear from the court’s opinion whether there was any evidence to say whether the boyfriend had another residence. Nevertheless, although the ex-wife may have been cohabitating with her boyfriend, the family court decided that the ex-husband did not prove his case.
As another example, in 2008, the Court of Appeals decided a case with a different set of facts, which were a little unusual. The ex-wife rented a house owned by her boyfriend for 3 ½ years. The boyfriend never changed his homeowner’s insurance policy status from owner-occupied to rental property. Importantly, the boyfriend’s car remained registered at the rental address where the ex-wife lived, he kept some personal property at the rental, and he stored his extra vehicle in the garage of the rental property. However, the boyfriend lived in other residences throughout South Carolina, the ex-wife paid him $500 monthly in rent, and the utilities were in the ex-wife’s name. When the ex-wife moved into the boyfriend’s rental property, the boyfriend moved to North Augusta for a job and got a new driver’s license reflecting the North Augusta address. The Wife and boyfriend admitted that they stayed the night together at least 90 times during the 3 ½ years, but it was never 90 consecutive nights. Therefore, the family court did not terminate the ex-wife’s alimony.
As a third example, in a 2011 Court of Appeals case, the court again decided that the alimony-paying ex-husband did not prove his case. Although there was evidence of recurring instances of the ex-wife spending the night with her boyfriend, that evidence did not refute the ex-wife’s and boyfriend’s testimony that they didn’t live together. The boyfriend kept his residence where his roommate also lived. The ex-wife would pick the boyfriend up and take him to her place to spend the night, but according to her testimony, it was because she did not want her elderly aunt, who lived in the neighborhood, to know she had a male spending the night. The boyfriend kept most of his belongings at his other home and only toiletries and a few clothing items at the ex-wife’s home. His mail continued to go to his other place. The ex-husband’s private investigators surveilled the ex-wife’s home 26 times but only found the boyfriend leaving in the morning nine times.
As a fourth and final example, in 2015, the South Carolina Supreme Court decided not to terminate alimony because the ex-husband, who was receiving alimony, had a girlfriend who maintained two residences and kept most of her belongings at her other residence. She brought an overnight bag with her when she stayed with the ex-husband, but she did keep substantial clothing at his home. Also, she stayed approximately two days per week in her other residence to care for her grandchildren. The Supreme Court rejected the argument that the girlfriend’s 2 days per week at the other home were akin to “work travel.”
Can 90-Day Continuous Cohabitation Terminate “Non-Modifiable” Alimony in South Carolina?
This answer depends on the precise language of the court-approved agreement, but the default answer to this question is “no.” However, you should have an attorney review your settlement agreement to give you a precise answer.
What Should I Do if My Ex-Spouse Receives Alimony From Me and Is Living With a Romantic Partner?
Call the attorneys at Futeral & Nelson to schedule a consultation. We can discuss your case with you, set a strategy, help you gather evidence, and help you decide whether you should file a case to stop your alimony payments.