By Kathleen M. Newman
In 2016 Minnesota’s spousal maintenance statute was changed to add cohabitation as a reason to modify spousal maintenance. In practice, did the addition of cohabitation as a basis to modify spousal maintenance change the way courts analyze a modification request based on the case law surrounding cohabitation?
All of us have encountered spousal maintenance modification motions based on a change in financial circumstances due to a reduction or increase in income or a reduction or increase in living expenses. Those motions are brought pursuant to Minn. Stat. §518.552 (2020), which we know requires a two-prong test: Has there been a substantial change in the circumstances of the parties? And does that change make the existing spousal maintenance order unreasonable or unfair? Although the statute was amended in 2016 to add cohabitation as a basis to modify spousal maintenance, it was not until August 2020 that the Minnesota Court of Appeals interpreted the cohabitation clause in the published case of Sinda v. Sinda. Does the analysis in Sinda make it easier or more difficult to obtain a modification of spousal maintenance based on cohabitation?
Prior to the late 1960s, we saw few modification motions based on cohabitation, or what was then known as a “meretricious” relationship—defined as a “stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist.” Until then, openly having a sexual relationship with someone you were not married to was taboo. With the advent of more liberal thinking about a woman’s sexuality, we saw more couples living together before marriage, to the point that now, people living together prior to marriage, or living together without the intention of marrying, is entirely commonplace.
It was in the early ‘70s that we saw these societal changes start to affect spousal support, which was then referred to as alimony. At that point, Minnesota statutes did not address an obligee’s meretricious relationship and its impact on the alimony he/she received.
One of the earliest court decisions is Bissell v. Bissell,1 a 1971 case that addressed whether the former wife’s need for alimony was reduced by her receipt over the previous two years of $11,000 in gifts from her boyfriend. Testimony was elicited that boyfriend stayed overnight more often than not, and that boyfriend and former wife had wintered together in Florida for almost four months. In its decision, the court noted it did not decide whether the existence of the meretricious relationship, in itself, was sufficient grounds to modify alimony. However, it held that the fact of this relationship, combined with the large cash gifts, produced a substantial change in circumstances that made the existing level of support—$500 a month—inequitable. The court reduced spousal maintenance to $200 a month.
This analysis was restated in the 1977 case of Sieber v. Sieber,2 the court stating that at one time post-divorce immoral conduct was viewed by some courts as an independent ground for reducing or terminating alimony. In affirming the district court, the Minnesota Supreme Court noted that “the more modern approach” to a meretricious relationship’s impact on the payment of alimony was to disregard the meretricious relationship except insofar as it might improve the obligee’s economic well-being. The Court also found the amount of alimony being paid was based on a stipulation, and further noted that stipulations should only be cautiously modified.
In 1979, the Supreme Court decided Abbott v. Abbott.3 In that case, the district court had held that a meretricious relationship, standing alone, was a sufficient ground for terminating spousal maintenance, a determination directly in conflict with Sieber. The district court found a meretricious relationship existed but did not make an analysis of how the relationship impacted the obligee’s finances. In overturning Abbott, the Supreme Court cited its ruling in Sieber, noting the Legislature had not specifically provided for spousal support termination based on post-divorce sexual activity, and observing that the parties’ stipulation only included remarriage as a basis for termination. The Supreme Court cited its concern that there was no contractual obligation on the part of former wife’s boyfriend to support her, and that if he left her, former wife “could, and likely would, become a public charge.”
The next significant case is Aaker v. Aaker,4 decided by the Minnesota Court of Appeals in 1989. In that case, the district court included a cohabitation clause in the judgment and decree that appeared to allow former husband to arbitrarily terminate maintenance on obligee’s cohabitation. The appellate court allowed the cohabitation provision to stay in, clarifying that the cohabitation clause would not allow the former husband to make the decision to arbitrarily terminate spousal support, but rather he would have to bring a motion, and prove the cohabitation improved the obligee’s economic well-being. Judge Huspeni dissented, arguing the inclusion of a cohabitation clause was not appropriate under the holding in Sieber.
The next several cases, Auer v. Scott,5Pumper v. Pumper,6James v. James,7Spencer v. Larson,8Nelson v. Nelson,9 and Hopf v. Hopf,10 all follow Sieber in holding the analysis of a modification of spousal maintenance based on cohabitation must follow the two-pronged test of a substantial change in circumstances that makes the existing order unreasonable and unfair.
Litigating a changed law
In 2016, the Legislature took up the cohabitation issue as it affects modification of spousal maintenance and passed legislation to incorporate cohabitation into the statutory framework for modification of spousal maintenance. Effective August 1, 2016, Subdivision 6 was added to Minn. Stats. Sec. 518.552. Under its terms:
(a) Spousal maintenance may be modified pursuant to section 518A.39, subdivision 2, based on the cohabitation by the maintenance obligee with another adult following dissolution of the marriage. The modification may consist of a reduction, suspension, reservation, or termination of maintenance. In determining if maintenance should be modified due to cohabitation, the court shall consider:
(1) whether the obligee would marry the cohabitant but for the maintenance award;
(2) the economic benefit the obligee derives from the cohabitation;
(3) the length of the cohabitation and the likely future duration of the cohabitation; and
(4) the economic impact on the obligee if maintenance is modified and the cohabitation ends.
(b) The court must not modify a maintenance award based solely on cohabitation if a marriage between the obligee and the cohabitant would be prohibited under section 517.03, subdivision 1, clause (2) or (3). A modification under this subdivision must be precluded or limited to the extent the parties have entered into a private agreement under subdivision 5.
(c) A motion to modify a spousal maintenance award on the basis of cohabitation may not be brought within one year of the date of entry of the decree of dissolution or legal separation that orders spousal maintenance, unless the parties have agreed in writing that a motion may be brought, or the court finds that failing to allow the motion to proceed would create an extreme hardship for one of the parties.
For the practitioner looking at bringing a motion to modify spousal maintenance based on cohabitation after the enactment of the statute, this meant, first, being able to establish there is cohabitation. The statute does not define cohabitation, but it is generally defined as “the fact, state, condition, or practice of living together, esp. as partners in life, usu. with the suggestion of sexual relations.”11 I presume with the legalization of same-sex marriage, this would include same-sex parties cohabitating.
If you are bringing a spousal maintenance modification motion based on cohabitation, you should consider whether the cohabitation supports a termination, rather than a reduction or suspension, of the spousal maintenance obligation. As discussed later, termination is unlikely based on case law, so due consideration must be given as to what relief should be requested.
In bringing a modification motion based on cohabitation, the obligor must first prove the obligee is living with a sexual partner. In many of these cases, the cohabitant maintains some semblance of occupancy at another residence, be it a rented room, apartment, or an owned home. Thus, proving the obligee and the cohabitant live together may be challenging. Getting mail at the obligee’s address, maintaining a driver’s license or passport at that address, school registration for the cohabitant or his/her children, and voter registration—all of these elements may go to prove occupancy. Serving the obligee with requests for admission pursuant to M.R.C.P 26.02 may confirm a cohabitant’s residence with the obligee.
Once you have proven the obligee and cohabitant are living at the same residence, you need to prove a sexual relationship. The obligee and the cohabitant may readily admit this, or you may have to establish this by admissions or other evidence, such as the birth of a joint child.
Once you have established cohabitation, you need to address the four requirements the court must consider under Subdivision 6:
(1) Whether the obligee would marry the cohabitant but for the maintenance award.
If asked in discovery, it is unlikely an obligee in a modification motion is going to admit the only reason she will not marry the cohabitant is that she will lose spousal maintenance. Consider looking for testimony from third parties where the obligee has admitted that she is not willing to marry the person she lives with because she will lose spousal maintenance. Another consideration is if the obligee holds herself as “engaged” to the cohabitant. Sometimes there has been a “commitment ceremony,” or an exchange of rings that can bolster your argument.
(2) The economic benefit the obligee derives from the cohabitation.
To prove this, you need to establish what the obligee’s budget was at the time of the divorce (hopefully there is a finding of fact about budgets) and establish what the obligee’s current budget is. Does the comparison show the obligee’s expenses have been reduced because the cohabitant is paying certain expenses, including expenses for the home, mortgage, utilities, maintenance, food, entertainment or the like? If you can prove the obligee’s living expenses have been reduced due to the cohabitant’s contribution, then you have proven a substantial change of circumstances and can then look to the second prong of the test, i.e., does the economic benefit make the current support order unreasonable and unfair? Written discovery (including document production) and depositions may prove necessary to meet your burden of proof. Of course, you may have to obtain discovery from the cohabitant, and courts are often reluctant to allow too much of an invasion of that person’s finances. You also need to be concerned that by involving the cohabitant in litigation, you may cause the relationship to end.
(3) The length of the cohabitation and the likely future duration of the cohabitation.
The statute provides that the motion cannot be brought within a year of the dissolution taking place, except for cases of extreme hardship. However, there is no case law or statutory guidance on how long a cohabitation should be before the court considers it impactful. Common sense dictates that the longer the cohabitation, the more likely the court is going to give weight to a request to modify spousal maintenance.
(4) The economic impact on the obligee if maintenance is modified and the cohabitation ends.
You will see comments in the older cases regarding the court’s concern that terminating spousal maintenance in the case of cohabitation will place the obligee at significant financial risk if the cohabitation ends as there is no contractual obligation to support one’s partner, absent a cohabitation agreement, and that may make the obligee a “public charge.” This is one reason courts are so reluctant to terminate spousal support based on cohabitation.
In any motion to modify based on cohabitation, once you have established the cohabitation, which will be the substantial change in circumstances, the analysis is going to be a need-based test, and it will be your burden to show the cohabitation provides the obligee an economic benefit that makes the current spousal maintenance award unreasonable and unfair. Remember, section 518A.39 subd. 2(e)12 specifies that the court, on a modification motion, is required to apply, in addition to all relevant factors, the factors for an award of maintenance under section 518.55213 that exist at the time of the motion.
The first post-statute case was the unpublished decision of Rhyan v. Rhyan.14 In affirming the district court’s decision that former husband had not met his burden of proof, the appellate court first noted the alleged cohabitation was occurring at the time of the stipulated divorce decree and former husband was aware of it. The court decided the case on the basis that “the record contained no credible evidence to support a finding that wife was cohabitating with A.S….”15 During the district court proceeding, the obligee claimed she had been living with A.S. prior to the divorce, that the relationship was not and had never been sexual, and she and A.S. were simply roommates; A.S. submitted a similar affidavit. In analyzing former husband’s additional argument (that wife’s needs had decreased from the time of the divorce because she was living with A.S.), the court noted that the judgment and decree did not clearly set forth each party’s living expenses, making former husband’s task of proving a change in the obligee’s living expenses difficult—a reminder of the importance of clear findings of fact about budgets in the divorce decree.
In the unpublished decision of Helms v. Helms,16 the former husband brought his motion to modify spousal maintenance, asserting that cohabitation alone warranted modification of spousal maintenance and claiming the court should “infer” that the obligee received economic benefit from cohabitation. The district court rejected that argument and denied former husband’s motion to modify. The court of appeals affirmed, citing Sieber and Abbott and noting that prior to the enactment of the statute, case law required a clear showing of economic benefit from the cohabitation. The court also noted the plain language of the statute required more than cohabitation, requiring the fulfilment of “at least some” of the four factors listed in the statute.
Sinda v. Sinda
In the recent case of Sinda v. Sinda,17 decided on August 10, 2020, the Minnesota Court of Appeals again addressed the cohabitation statute. In this published decision, the court did a detailed analysis of how cohabitation impacted a modification motion post-statute. In Sinda, former husband cited several changes in circumstance in his motion to modify spousal maintenance, cohabitation being only one. In his argument that cohabitation alone entitled him to a reduction in his spousal maintenance obligation, he claimed cohabitation entitled him to a reduction regardless of whether the cohabitation constitutes a substantial change in circumstances or caused his existing obligation to be unreasonable or unfair. In analyzing the case, the appellate court noted that the sufficiency of the district court’s findings on cohabitation depended on what standard is applied to a motion to modify based on cohabitation, an issue that had never been addressed.
In interpreting the cohabitation statute, the appellate court found that in determining whether to reduce spousal maintenance based on cohabitation, the district court must consider the extent to which the cohabitation improves the obligee’s economic well-being, as well as considering the three other factors listed in the statute. In addressing former husband’s argument that the statute did not require consideration of the two-prong test for modification—a substantial change in circumstances that makes the support order unreasonable and unfair—the court noted that in enacting the statute, the Legislature did not omit these two factors mandated by Minn. Stat. §518A.39, subd. 2(b), but expressly incorporated that test, and in addition identified four factors specific to cohabitation that district courts “should” consider, and that “may” warrant modification. The court went on to say that “far from establishing a presumption favoring modification when an obligee cohabits, this layered framework underscores the fact-specific analysis that guides the court’s discretion in determining whether modification is appropriate.”
In determining that the cohabitation statute is “… an adjunct to and not a substitute for the two-part modification test,” the appellate court concluded the statute signaled that cohabitation constitutes a substantial change in circumstances that “may” afford the obligee an economic benefit. In considering the second part of the modification test, whether the existing order is unreasonable and unfair, the court must consider the four factors enumerated in the statute. The appellate court held that by listing the four factors, the Legislature established there was no presumption for modification based solely on cohabitation, but that courts must consider whether:
- the cohabitation actually reduces or eliminates the obligee’s need;
- that the change in need is reasonably expected to be long term and durable; and
- that the cohabitation is not merely a means of avoiding the automatic termination of spousal maintenance that remarriage would necessitate.
Given courts’ reluctance to terminate spousal maintenance based on cohabitation even if you can prove an economic benefit, it may be best to ask for a reduction or suspension of a permanent spousal maintenance award. This way, the concern that termination would leave the obligee without any means of support (and at risk of becoming a public charge) can be alleviated.
Case law, both before and after the cohabitation statute was enacted, shows a clear reluctance to terminate spousal maintenance on cohabitation. With even moderately sophisticated cohabitants, proving the economic benefit is difficult. The cohabitant will often maintain a semblance of another residence. Detailed financial discovery of a non-party is often difficult to obtain, and cohabitating parties can take steps to muddy the waters about financial contribution from the cohabitant. This might involve using cash transfers of funds, or not requiring the cohabitant to contribute to fixed expenses, but benefiting from the cohabitation in other ways, such as paying for entertainment, dining out, or gifts of clothing, jewelry, and the like.
Of course, bringing the modification motion itself can cause significant stress on the cohabitating relationship, sometimes causing it to change or terminate, and the costs of the litigation incurred by the obligor will be for naught. Under most circumstances, the obligor will likely be looking at retaining a financial expert to analyze bank and credit card records, and will be engaging in extensive discovery, including depositions. Careful analysis of the case should be made before encouraging an obligor to bring a motion to modify spousal maintenance. When advising an obligee—either at the end of the divorce, or when he/she is seeking advice about the impact of cohabitation on an existing spousal maintenance award—there should be a detailed explanation of the impact of the financial contribution of a cohabitant. An obligee may wish to think long and hard about entering into a relationship that could adversely affect a hard-won permanent spousal maintenance award.
With extensive experience in all aspects of marital dissolutions, KATHLEEN M. NEWMAN has handled many complex divorces, including cases with closely held business interests, professional practices, and high net worth cases. Her clients appreciate her listening skills and quick assessment of complex issues. She helps her clients organize a strategy to accomplish their goals in resolving the issues in their divorces.
1 191 N.W.2d 425 (Minn. 1971).
2 258 N.W.2d 754 (Minn. 1977).
3 282 N.W.2d 561 (Minn. 1979).
4 447 N.W.2d 607 (Minn. Ct. App. 1989).
5 494 N.W.2d 54 (Minn. Ct. App. 1992).
6 No. C1-00-1971, 2001 WL 826853 (Minn. Ct. App. 7/24/2001).
7 No. A05-1056, 2006 WL 463920 (Minn. Ct. App. 2/28/2006).
8 No. A07-0339, 2008 WL 227989 (Minn. Ct. App. 1/29/2008).
9 No. A07-682, 2008 WL 1748207 (Minn. Ct. App. 4/15/2008).
10 No. A08-0652, 2009 WL 910978 (Minn. Ct. App. 4/7/2009).
11Cohabitation, Black’s Law Dictionary (11th ed. 2019).
12 Minn. Stat. §518A.39 subd. 2(e) (2020).
14 No. A17-0177, 2017 WL 3974318 (Minn. Ct. App. 9/11/2017).
16 No. A17-0854, 2017 WL 5661591 (Minn. Ct. App. 11/27/2017).
17 949 N.W.2d 170 (Minn. Ct. App. 2020).