Was Ex-Wife’s New Relationship Cohabitation Under TN Law? Maybe Not.

Tennessee alimony modification law case summary after divorce law from the Court of Appeals.

Don Mabee v. Gayle Mabee – Tennessee divorce cohabitation

The husband and wife were divorced in 2010 and executed a marital dissolution agreement.  The agreement provided that the husband would pay alimony, but that the obligation would terminate if the wife were cohabitating with another man.  The husband paid alimony until December 2011.  He stopped, because he believed that the wife was cohabitating with another man.  On January 3, the wife filed a petition with the court requesting that the alimony continue.  A trial was held in August, and a number of witnesses testified.  In addition to the spouses, a private investigator, a neighbor, and the boyfriend testified.

Both the private investigator and neighbor testified that the boyfriend visited the wife’s apartment many times, and that he stayed all night on numerous occasions.  In addition, photographs, postcards, letters, and Facebook postings were introduced as evidence.

The wife admitted that she and the boyfriend had a romantic sexual relationship, but denied that he lived with her or that either of them had been financially supporting the other.  The boyfriend testified that he lived with his mother and the mother’s boyfriend.  He testified that the wife was subsequently evicted from her apartment, was homeless, and slept outdoors at various locations.  While she sometimes came to the mother’s house to shower or change clothes, and sometimes stayed there on particularly cold nights, he testified that he had no intention of marrying or living with the wife.  In fact, the boyfriend testified that he was married to someone else, and even though he was not living with the wife, he had no intention of getting a divorce.

The trial court concluded that this evidence did not amount to cohabitation, since cohabitation requires a “husband and wife” type of relationship which was absent here.  Therefore, the trial court entered a judgment against the husband for past due alimony.  The husband appealed to the Tennessee Court of Appeals.

The Court of Appeals noted that the agreement did not refer to merely “spending the night”.  It used the word “cohabitation”, and the court examined the meaning of that word.  It examined the dictionary definition and legal definitions of the word, and concluded that it required more than an intimate sexual relationship, and more than spending the night together on several occasions.  It also requires a mutual assumption of duties and obligations of the type normally assumed by spouses or life partners.  The court noted that the husband had the burden of proof that the wife was cohabitating, and that he had failed to meet this burden.

The court also distinguished earlier cases where cohabitation had been found, and noted that in those cases the evidence had been much stronger.  Therefore, it agreed with the trial court’s conclusion.

The court affirmed the trial court’s judgment, and also assessed the costs of appeal against the husband.

No. M2012-02430-COA-R3-CV (Tenn. Ct. App. June 27, 2013).

See original opinion for exact language.  Legal citations omitted.

To learn more, read Tennessee Alimony Law in Divorce | Answers to FAQs.  Also, for legal updates, news, analysis, and commentary, see our Tennessee Family Law Blog and its Alimony category.  A Memphis divorce lawyer from the Miles Mason Family Law Group can help.  To schedule your confidential consultation, call us today at (901) 683-1850.