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Wednesday, February 11, 2015

Does a Tenant Cohabitate?

Marital agreements and trust agreements often employ the term “cohabitate” or “cohabitation.” Typically, these agreements provide for the end of trust distributions, alimony, occupancy of property, or other benefits, when the subject persons commences to cohabitate with another.

In a recent Florida case, a marital settlement agreement provided that the husband would no longer have to pay alimony to his former spouse if she remarried or if she engaged in “cohabitation with a male.” The former wife owned a two bedroom townhouse. At some point, she took on a male tenant, who paid her $400 of monthly rent. The tenant and the former wife lived largely separate lives. They slept in separate bedrooms and did not have an intimate relationship. They dated other people, and usually ate separately. One would not expect that this constituted cohabitation, as generally used in these type of agreements.

Nonetheless, the trial ruled that the former wife was cohabitating with the tenant, and thus her former husband no longer had to pay her alimony. Coming to the rescue of the usual meaning of cohabitation in this context, the appellate court reversed, finding no cohabitation.

The court did not develop a working definition of cohabitation. It did note that it requires something more the mere presence of someone else under the same roof. In effect, it also found that a mere landlord/tenant relationship does not create cohabitation. It suggested that one party economically supporting the other could create cohabitation.

In the end it reviewed other case law, mostly from outside of Florida, and noted that the former wife and the tenant “shared a roof but they did not share their lives” and thus did not cohabitate.  Not exactly a precise definition, but more precise than U.S. Supreme Court Justice Potter Stewart’s infamous definition of obscenity as “I know it when I see it!”

Atkinson v. Atkinson, 40 Fla. L. Weekly D404a (2nd DCA, February 11, 2015)

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