Gallant & Ervin Obtains Judge Ruling Terminating Client’s Obligation to Pay Alimony (August 2013)

On May 30, 2008, our client entered into a Separation Agreement which obligated him to pay alimony to his former spouse in the amount of $200.00 per week until the remarriage of his former spouse, the death of his former spouse, the death of our client, or a material change in circumstances.” Subsequent to the parties’ divorce, the former spouse began cohabitating with her significant other and shared living expenses with him. In addition, the Massachusetts alimony statute was amended in 2011 and now provides that “[g]eneral term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household . . . with another person for a continuous period of at least three months.” See M.G.L. ch. 208, § 49(d) (emphasis added).

Given that the former spouse was cohabitating with her significant other, was enjoying the benefit of shared expenses, and because the alimony statute was amended as described above, Gallant & Ervin filed a Complaint for Modification on behalf of our client on June 15, 2012 seeking an order to terminate his obligation to pay alimony. Discovery that we conducted revealed that the former spouse paid for no groceries and paid for very few of the utilities and other household expenses. In short, it was clear that the former spouse was sharing expenses with her cohabitant and, in some instances, having expenses completely paid by her cohabitant. The deposition of a third party revealed that the former spouse and her cohabitant were indeed in a romantic relationship, which was helpful because whether parties are a “couple” is a factor to determine cohabitation. See M.G.L. ch. 208, § 49(d)(1)(v).

The Complaint for Modification was tried before Judge Gorman on August 7, 2013. During the trial, we elicited testimony from our client that he no longer had the financial ability to pay any alimony to his former spouse. More importantly, cross examination of the former spouse revealed that she paid for very few household expenses and, in fact, was enjoying the benefit of payment by her cohabitant of the vast majority of the household expenses. See M.G.L. ch. 208, § 49(d)(1)(ii). A third party witness also testified that he saw the former spouse and her cohabitant out to dinner together on numerous occasions, underscoring that they were a couple. Cross examination also exposed that the former spouse spent thousands of dollars on luxurious expenses within a very short period of time. The former spouse’s testimony was also inconsistent and not credible in that she attempted to explain that she was no longer in a relationship with her cohabitant because he had a drinking problem but, at the same time, she admitted that she had moved in with him. Finally, the former spouse freely admitted that she did not have any evidence that she had undertaken any efforts to obtain employment.

Judge Gorman apparently did not find the matter to be a close case as she entered an Order the morning after the trial, in which she terminated our client’s obligation to pay alimony to his former spouse.

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