Cohabitation Must Occur at the Time of Filing the Motion to Terminate

Scott v. Scott, Cohabitation, and Alimony

When does a payor spouse have to prove that cohabitation was happening?
Cohabitation has to be happening at the time a motion to terminate alimony is filed; not in the past.

In a recent alimony case, Scott v. Scott, the Supreme Court of Utah decided whether a former wife’s alimony payments were to be terminated, under Utah Code Ann § 30-3-5(10), because of his ex-wife’s cohabitation with her boyfriend. The district court concluded, and the Utah Court of Appeals affirmed, that Jillian Scott’s cohabitation with her boyfriend terminated her alimony payments terminated. The Supreme Court of Utah reversed.

Section 30-3-5(10) provides that “alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” The former wife argued that to terminate the alimony obligation under the statute, her former husband had to show that his ex-wife’s cohabitation occurred at the time when he filed his motion to terminate alimony, but that he could not do so in that she and her former boyfriend had broken up months before her former husband filed his motion. In this case, the strongest support for the former wife’s interpretation of the statute was, indeed, the language itself.

The Supreme Court of Utah concluded that the meaning of section 30-3-5(10) depends on what the meaning of the word “is” is, and the Supreme Court of Utah concluded that the legislature intended that “is” should mean “is” and not “was” or “has been.” In other words, it held that the former husband did not establish that his former wife cohabitated within the meaning of section 30-3-5(10) because the plain language of the statute required the paying spouse to establish that the former spouse “is” cohabitating at the time the paying spouse files the motion to terminate spousal support.

Additionally, under Utah Code § 30-3-3, defending a motion to terminate alimony does not entitle the defending spouse to an award of attorney fees. Rather, the statute provides for an award of attorney fees in any action to establish alimony or in any action to enforce an order of alimony. Here, there is no allegation that the former husband failed to continue to pay alimony, and therefore the former wife is not entitled to attorney fees.

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