Guest column: Elizabeth J. McInturff, Esq. Will your ex’s cohabitation end your alimony obligation? In Mendelson v. Mendelson, the and (5) recognition of the relationship Court of Special Appeals described by the community.” remarriage as obtaining a marriage The court further explained that the license and undergoing a marriage term “cohabitation” (or an analogous ceremony. Relationships with “‘all the term) contained in a spousal support attributes of marriage” do not amount agreement will be interpreted under to marriage. the above-referenced factors unless Unfortunately, this leaves the payor the parties indicate another meaning. spouse on the hook for spousal support Parties are also, of course, mostly free in spite of the fact that their ex is now to expand upon or modify the definition of cohabitation within their own sharing expenses and other benefits spousal support agreements. with a new partner. So, what can the This was recently reaffirmed in client do? Rose v. Rose. The Court of Special You should start by asking your Appeals held that the lower court client whether they entered into a properly applied the five factors set prenuptial and/or separation agreement forth in Gordon in finding that the relating to spousal support payments. If receiving spouse’s significant romantic Elizabeth J. McInturff, Esq. such an agreement is in place, a careful relationship did not constitute Have you had this happen – a client review of those provisions is warranted cohabitation under the terms of complains that their ex is now living before considering next steps. the agreement, which had expressly with a new boyfriend or girlfriend Prenuptial and separation adopted the Gordon factors, even and asks if they can terminate their agreements frequently contain language where there was cohabitation and a alimony payments? If so, you probably that spousal support is terminated upon long-term intimate relationship but the remarriage or cohabitation of the know that the answer is the attorney’s where the other factors were not receiving spouse. Where this gets tricky favorite adage -- “it depends.” satisfied. is whether and how cohabitation is Absent such an agreement and Under Maryland law, unless the defined. a finding that the receiving spouse parties expressly agree otherwise, The preeminent case on the is cohabitating, the only other real alimony automatically terminates upon definition of cohabitation is Gordon v. viable avenue of attack is petitioning the death of either party, the marriage Gordon. There, the Court of Appeals the courts under the “harsh and of the recipient, or if the court finds was tasked with examining the term inequitable result” and asking the it necessary to terminate alimony “to “cohabitation” as used in a separation court to examine the receiving party’s avoid a harsh and inequitable result.” agreement relating to spousal support. financial circumstances to determine In this scenario, the key words in The court ultimately concluded that whether alimony should be terminated responding to the client’s question are “‘cohabitation’ implies more than or modified. “the marriage of the recipient.” Does merely a common residence or a sexual This is why it is so important to keep these factors in mind when the fact that the former partner now relationship.” negotiating a client’s prenuptial resides with a new partner count as The court went on to develop a or separation agreement. Their remarriage under the statute? Unless non-exhaustive guide for trial courts requirement to pay and ability to the parties have previously agreed to consider in determining whether receive may hinge on the definition of otherwise, the answer is most likely parties are cohabiting, including: “(1) cohabitation. “no.” establishment of a common residence; The courts have held that the phrase (2) long-term intimate or romantic Elizabeth J. McInturff, Esq., a partner at “marriage of the recipient” does not involvement; (3) shared assets or JDKatz, PC, represents clients throughout Maryland and Washington, D.C., in complex extend to persons living in a “marriage- common bank accounts; (4) joint family, civil and commercial disputes. For type relationship.” contribution to household expenses; more information, visit www.jdkatz.com. TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2021 7 7