In 1980 Pennsylvania revised its 1929 Divorce Code and for the first time allowed post divorce alimony. It was a tough legislative battle with conservative forces professing concern that divorce would become ubiquitous. One of the provisions which made the law tolerable to those forces was Section 3706. It is short and easy, or so it seemed in 1980:

No petitioner is entitled to receive an award of alimony where the petitioner, subsequent to the divorce pursuant to which alimony is being sought, has entered into cohabitation with a person of the opposite sex who is not a member of the family of the petitioner within the degrees of consanguinity.

This section effectively set the table for the next 40 years of alimony practice. In case after case when alimony is negotiated it inevitably produces a debate over cohabitation provisions. The person asked to pay typically demands a clause that adopts the “bar” in the event cohabitation should occur. The argument is, “Even if you go to court and get an alimony award, that award is absolutely subject to the law (i.e., Sec. 3706).”

Early on the trial and appellate courts struggled with just what is “cohabitation.”  In 1986 the Superior Court issued its ruling in Miller v. Miller, 508 A.2d 550, holding that:

Cohabitation may be shown by evidence of financial, social, and sexual interdependence, by a sharing of the same residence, and by other means. Where, upon proof by a preponderance of the evidence, the trier of fact concludes that the dependent former spouse has entered into a relationship with “a [person] who is not a member of the [alimony recipient’s] immediate family within the degrees of consanguinity” and the two have assumed the rights, duties, and obligations attendant to the marital relationship, the dependent former spouse is no longer entitled to receive alimony from the other former spouse. An occasional sexual liaison, however, does not constitute cohabitation.

This language was recently quoted in a case finding the cohabitation standard was not met. Chaclas v. Chaclas, 1296 EDA 2022 (Sept. 26, 2023)

In Blankenship v. Blankenship, a case decided on May 22, Facebook once again proved the undoing of a litigant’s case. The parties had a 2012 agreement that contained alimony termination language quite similar to Section 3706. In 2022 husband stopped paying and wife sued to enforce. His defense was that she was cohabitating with a “non lineal related adult male” named Greg Davis.

While the law has not changed, the world of cohabitation has. In 1980 people who “lived in sin” which is to say, without being married, risked not just loss of alimony but social ostracism. A gay relationship was not just unthinkable it was technically part of the crimes code until 2022 even though the U.S. Supreme Court found anti-sodomy laws unconstitutional in 2003. Today, we have moved on from the battle over gay relationships and established a new one over gender identity. In 1980 the definition of “opposite sex” was crystal clear. In 2022 Pew Research reported that 1.6% of Americans are transgender or non-binary and that the percentage is closer to 5% among people ages 18-29. So, if you are paying your husband alimony and he begins to live with another man who is transitioning to become a woman, is your June alimony still due?

Thus, the “bright line” of opposite sex has dimmed considerably in the past decade. But at least we still have what is the “dependency” test of Miller. Unfortunately, another bright line still exists in the sense that if the court finds “cohabitation” Section 3706 does not mince the remedy. Alimony is over and its remains undecided in Pennsylvania whether kicking your roomie out revives your rights as an eligible receiver of alimony. As we noted, Mrs. Blankenship “blanked” when it came to consistent evidence of her relationship with Greg Davis. She professed that he came to live with her after she was hospitalized for much of 2021 and 2022 but that the relationship, while once intimate, had grown platonic. But in her Facebook world, the story was not consistent. In July of 2022 wife informed the world that her relationship with Davis was then six years old and that she was “in love.” Wife said that the relationship was sexual until Davis moved into her house in July 2021 but that from that time forward it was platonic. Husband countered that his former wife and Davis had been living in the same household for almost two years at the time of hearing and there was no indication from the testimony that cohabitation was ending.

The Adams County trial court held this was cohabitation and alimony was no longer due. Reconsideration was sought and granted but the court then affirmed its finding of cohabitation. On appeal wife acknowledged that the relationship was sexual but became platonic once cohabitation occurred. That’s a heavy lift for the trier of fact when the couple in front of you has been living together for 2 years and no one has indicated they have any plan to separate. In these cases courts like to keep the testimony away from the sex and look toward things like joint assets or bank accounts. The case tells us a little about those facts (car sharing, toothbrush location) but then we have wife’s soto vocce  statement of “complete dependence” on Mr. Davis even though he is resident in her home. A few pages later she says there is no “interdependence” and she is the sole beneficiary of Mr. Davis’ care. Hmmm……

This is indeed a complicated issue. Many alimony payors seem to think that if they camp outside their ex’ house and snap a picture of an unknown license plate in the driveway at dawn the next day, they will have achieved a victory. It doesn’t work that way. But many alimony recipients seem to think that vacationing together with someone or co-signing for a boyfriend’s truck shouldn’t affect things. That is also naïve.

Last week, a bill was introduced in the General Assembly (House Bill 2303) which would strike the hard bar of Section 3706 (cohabitation ends alimony full stop) and, instead make it a factor to be considered when awarding or modifying alimony. It would also step away from the now tricky definition of “opposite sex.” So, if the alimony recipient ends up as the guest of Jeff Bezos on his 417 foot yacht, perhaps alimony could be adjusted for the months they are at sea. And we don’t have to get into the nastiness of who is in which cabin or whether she was exiled to the lesser 250 foot yacht that supports Bezos’ “Koru” while at sea. This would also give a court flexibility to suspend an alimony award or modify it while a recipient spouse has a trial voyage with another person, regardless of that person’s sexual orientation or gender identity. When matters like this get complicated, courts need to have flexibility to adjust to the circumstances.

Blankenship v. Blankenship  1049 MDA 2023

N.B. The draft legislation allows consideration of any cohabitation arrangement when assessing the “need”  for alimony. 23 Pa.C.S. 3701(b)(13).