Hofstra Law Review Volume 7 | Issue 2 Article 10 1979 Alimony Modification: Cohabitation of Ex-Wife with Another Man Robert I. Komitor Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Recommended Citation Komitor, Robert I. (1979) "Alimony Modification: Cohabitation of Ex-Wife with Another Man," Hofstra Law Review: Vol. 7: Iss. 2, Article 10. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol7/iss2/10 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Komitor: Alimony Modification: Cohabitation of Ex-Wife with Another Man NOTES ALIMONY MODIFICATION: COHABITATION OF EX-WIFE WITH ANOTHER MAN Section 236 of the New York Domestic Relations Law empow- ers the court to order a husband to make alimony payments to his wife to provide suitably for her support.' In determining whether and to what extent to award alimony, the court considers such fac- tors as the duration of the marriage, the ability of the wife to sup- port herself, and the circumstances of the case and the respective parties.2 The same section includes a general provision for annul- party.3 ment or modification of alimony upon application of either Another section, section 248 of the Domestic Relations Law-the central focus of this Note-additionally permits a husband to move for termination of alimony if his wife remarries or "is habitually liv- ing with another man and holding herself out as his wife, although not married to such man." 4 1. N.Y. DOM. REL. LAw § 236 (McKinney 1977). Unless otherwise indicated, this Note is confined to the law of New York State. The Supreme Court in Orr v. Orr, 99 S. Ct. 1102 (1979), invalidated an Alabama statute providing alimony for wives only. Section 236 and other provisions of New York law will have to be redrafted to comply with the decision. This Note refers exclusively to alimony awards to women to reflect current New York State law. Assuming the law is changed to provide alimony for men, and the same standards are used for men and women in alimony determinations, a man will not get alimony if his wife simply has more money, but only where he requires sup- port. There will thus be fewer alimony awards to husbands than there are to wives. Unlike women, men rarely forego careers to stay home and care for children, thereby failing to develop marketable skills. It is also less likely that men will be awarded custody of children upon divorce. Nor do men face the economic disadvantage of earning less pay for the same job. Thus, in the vast majority of cases, alimony awards should still be made to women. Nevertheless, references in this Note to "a woman" receiving alimony are equally correct if read as "a dependent spouse." 2. N.Y. DoM. REL. LAW § 236 (McKinney 1977). 3. Id. 4. Id. § 248. The effect of Orr v. Orr, 99 S. Ct. 1102 (1979), on § 248 is not clear. The legislature might make § 236 gender-free by providing for alimony for men, but leave § 248 to allow alimony termination only for the husband if his wife is cohabiting with another man. It could be argued that the statute addresses a different 471 Published by Scholarly Commons at Hofstra Law, 1979 1 HofstraHOFSTRA Law LAW Review, REVIEW Vol. 7, Iss. 2 [1979], [Vol.Art. 107: 471 The New York Court of Appeals in Northrup v. Northrup5 denied an ex-husband's request to terminate alimony payments un- der section 248, even though Ms. Northrup was living with an- other man, because she was not "holding herself out" as his wife.6 Thus, habitual cohabitation alone does not satisfy the holding-out requirement. Judge Wachtler, in his dissenting opinion, ques- tioned whether the "Legislature ever intended such a grotesque result." 7 Since few unmarried couples hold themselves out as mar- ried, Judge Wachtler expressed concern that courts are left "pow- erless to relieve the former husband of the obligation of subsidizing his former wife's affairs." 8 The Northrup decision sparked moral outrage and debate over the effectiveness of section 248. Editorial comment in the New York Times found the decision "insupportable." 9 A letter to the Times attacked the decision, expressing concern for "hard-working men- who are caught in [a] humiliating and financially draining trap."10 Within five days of the decision, Assemblyman Vincent Nicolosi introduced legislation that would have eliminated the holding-out requirement, permitting alimony to be terminated on the basis of habitual cohabitation only. 1 A similar bill was passed by the New York State Senate the following month.12 Proposals that are designed to strengthen section 248-such as that of Assemblyman Nicolosi-are misdirected. A more sensible issue than that presented in Orr, and as long as men can get alimony under § 236, § 248 can remain. Another possibility is redrafting § 248 to make it gender-neutral, thus allowing an ex-wife paying alimony to have the award terminated if her ex- husband is living with another woman. While this would appear the more reasonable alternative as it avoids otherwise certain constitutional attack under the fourteenth amendment, this Note will argue that § 248 should be abolished entirely, even if gender-free. 5. 43 N.Y.2d 566, 373 N.E.2d 1221, 402 N.Y.S.2d 997 (1978). 6. Id. at 572, 373 N.E.2d at 1224, 402 N.Y.S.2d at 1000. 7. Id. at 573, 373 N.E.2d at 1225, 402 N.Y.S.2d at 1001 (Wachtler, J.,dis- senting). 8. Id. (Wachtler, J., dissenting). 9. N.Y. Times, Feb. 19, 1978, § 4, at 16, col. 1. This editorial considered Northrup in conjunction with a California case that held that a woman can be awarded alimony when she separates from a man to whom she is not married. Pre- sumably the California case is Marvin v. Marvin, 18 Cal. 3d 660, 557 P.2d 106, 134 Cal. Rptr. 815 (1976). 10. N.Y. Times, Feb. 25, 1978, at 20, col. 6. 11. See A10394, 201st N.Y. Legis. Sess. (1978) (sponsored by N.Y.S. Assemblyman Nicolosi); N.Y. Times, Feb. 18, 1978, at 27, col. 6. 12. S7144, 201st N.Y. Legis. Sess. (1978) (sponsored by N.Y.S. Sen. Gordon, passed Senate Mar. 15, 1978). http://scholarlycommons.law.hofstra.edu/hlr/vol7/iss2/10 2 ALIMONY MODIFICATION 473 19791 Komitor: Alimony Modification: Cohabitation of Ex-Wife with Another Man approach is to repeal section 248. The key consideration in alimony modification should be a change in the financial circumstances of 13 the parties. Section 236 provides for such modification. Further- more, alimony modification should not be based on the moral con- siderations underlying section 248. This Note examines section 248 in light of the Northrup deci- sion and analyzes the legislative responses to Northrup. This dis- cussion demonstrates that the problems associated with section 248 are indicative of the confusion surrounding the law of alimony and alimony modification. However, repeal of section 248 is only a partial solution. The system must be overhauled to allow equal or at least equitable dis- tribution of property after divorce. 14 Courts should be permitted to include periodic future payments in postdivorce property settle- ments. In certain cases the future earnings of a spouse should be considered an asset of the marriage, divisible upon divorce. For ex- ample, if a woman financed her husband's medical education, then remained at home to care for their children instead of further de- veloping marketable skills, and the marriage was of long duration, she should have the right to share in her husband's future earn- ings. Even without major reform, however, repeal of section 248 is a minimal step in the right direction. THE PROBLEM Alimony in General The confusion surrounding section 248 and the question whether to eliminate a woman's alimony because she is living with another man stems from confusion about the definition of alimony. 13. See, e.g., Covert v. Covert, 48 Misc. 2d 386, 264 N.Y.S.2d 820 (Sup. Ct. 1965). In determining whether to terminate alimony under § 236, the court "will consider any significant changes in circumstances which materially increase or de- crease the financial burden on either spouse." Id. at 388, 264 N.Y.S.2d at 822. If § 248 is made gender-neutral as a result of Orr, the thesis of this Note remains to unchanged. Since it is likely that substantially more alimony awards will be made women than men, the negative effects of § 248 will have a disproportionate effect on re- women. Furthermore, even if some men are affected, the defects in the statute main. In the few cases where men are awarded alimony, it should be modified only on a on a showing of substantial change of financial circumstances and not simply is showing that the man is living with another woman. California's version of § 248 gender-neutral. CAL. CIV. CODE § 4801.5 (West Gum. Supp. 1978); see text accompa- nying notes 140-144 infra. 14. See note 39 infra and accompanying text. Published by Scholarly Commons at Hofstra Law, 1979 3 HOFSTRA LAW REVIEW Hofstra Law Review, Vol. 7, Iss. 2 [1979],[Vol. Art. 107: 471 Alimony is a statutory creation. 15 The statute governing alimony awards in New York State is necessarily broad to cover the many possible circumstances that can occur in the event of divorce.