An amendment, introduced in the Minnesota Legislature on March 15, 2016, proposed an change to Minn. Stat. sec. 518A.39, Subd. 3, which will terminate alimony payments if the recipient remarries or dies. HF1333 or the “cohabitation bill” also covers situations in which a recipient cohabitates with another person.

Similar Legislation Passed Across the Nation

Many other states are passing statutes like HF1333 regarding cohabitating relationships. For instance, New York, Missouri and Georgia allow courts discretion to modify alimony if they determine that cohabitation exists.

Will Alimony Be Terminated or Suspended?

HF 1333 as it’s presently written says that cohabitation creates grounds to suspend or terminate maintenance. This language is important, because of the difference between “termination” and “suspension.”

Per the Minnesota Statutes, “termination” means that the receiving spouse cannot return to court to get maintenance payments reintroduced. But the proposed law will not terminate payments for cohabitants. This raises a key question: will the bill encourage cohabitation and discourage remarriage?

The economic incentives will certainly be in place, even if the intent is otherwise. As Steve Jobs once sagely observed: “There are downsides to everything; there are unintended consequences to everything. The most corrosive piece of technology that I’ve ever seen is called television – but then, again, television, at its best, is magnificent.”

So will the effects of this proposed bill be “magnificent” or “corrosive” or a bit of both?

Seven Factors That Help Determine Whether Cohabitation Exists

1.    The couple owns assets in common, such as bank accounts, vehicle titles and real estate.

2.    The couple shares responsibilities.

3.    Others (e.g. friends and family) recognize the nature of the relationship.

4.    The couple lives together. This is the typical way people think about cohabitation. In fact, the word “cohabitate” literally means living together. (In our article in April’s Minnesota Lawyer, we argued that: “in our view, the proposed legislation would be just as effective if the “living situation” was the only issue explored by the court.”)

5.    The couple’s relationship has endured. This is a murky area, because overnight visits often gradually convert to living together in earnest. Also, some people move in immediately (without knowing each other well). Others live apart for years but nevertheless have very serious, albeit somewhat independent relationships.

6.    The couple has made promises to each other regarding support or gone through some form of commitment ceremony short of marriage.

7.    The court can consider other, diverse evidence – anything related to the issue of cohabitation.

Implications of HF 1333

•    Interestingly, the law would allow the court to determine that a couple is cohabiting even if they don’t actually live together physically.
•    Also, the court does not need to rely on one factor over the others discussed above. Since no one factor dominates, we believe the first four factors will likely be most important, because there should be less information available about the last three.
•    Per HF 1333, the obligor has the burden of proof to show that his or her ex is cohabitating.
•    Finally, the court must make written findings for all seven factors.

*A longer version of this article authored by Cynthia and Jason Brown originally appeared in the Minnesota Lawyer newspaper on April 7, 2016.