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It looks like the days of the cohabitation dividend may be numbered.

As anyone who cares, knows, M.G.L., chapter 208, section 49(d)(2) (eff. 3/1/12), directs that a probate and family court judge shall reduce, suspend or terminate alimony when the recipient is shown to have cohabited (as defined) for more than three months. And, the courts have been busy hearing requests to do exactly that regularly ever since.

A hot controversy over section 49(d)(2) is whether the enactment of the new law was itself a change of circumstances that would allow the court to act, in a case where the cohabitation pre-dated the new law, or if the alimony payor would only have access to relief if he or she could show a substantial change of financial circumstances since the court’s last judgment in the case, be it a divorce or a modification. Lawyers have debated this issue, including in this blog. (See, Maureen McBrien’s “Impact of Cohabitation Under Alimony Reform Act”, May 2, 2012; and David Lee’s “Counterpoint re: Alimony Reform and Cohabitation”, July 10, 2012.)

One judge recently decided the issue for the parties in Schwartz v. Schwartz, Middlesex Probate and Family Court Docket No. 03D 2715. Judge Edward F. Donnelly concluded that the new alimony statute was itself sufficient to justify alimony termination, and he did just that. Critically, the request under Section 49(d)(2) concerned an established cohabitation that Judge Donnelly saw as tantamount to marriage; and the relationship existed in that form before a previous modification judgment between the parties. Financial circumstances had not substantially changed since the last judgment; the common household circumstances had not changed either; and the only material change was enactment of the statute.

In his rationale, the judge observed that:

It does not make sense that the husband is penalized because of a modification judgment which entered almost two years prior to the enactment of the alimony reform act. To require the husband to show a change of circumstances independent of the statute would render the language of G.L.208, [s.] 49(d), which requires that the court terminate, modify or suspend alimony upon cohabitation of the recipient spouse, meaningless in many cases. (Italics added.)

Certainly, a clear statement from a thoughtful judge; but one with which Ms. Schwartz deeply disagrees, one assumes. We expect that an appeal will follow on this delicate point of policy and statutory interpretation. Just one of many appellate cases to come from the alimony reform statute: the gift that keeps on giving.