In Kentucky, the statute governing the establishment of maintenance (aka spousal support) and cohabitation is Ky. Rev. Stat. § 403.200 and the statutes governing modification of maintenance are Ky. Rev. Stat. § 403.180 and Ky. Rev. Stat. § 403.250. Assuming that the parties have not entered into a separation agreement which properly addresses maintenance, the court may grant maintenance under Ky. Rev. Stat. § 403.200 only if it finds that the spouse seeking maintenance:
(a) Lacks sufficient property, including marital property apportioned to the spouse, to provide for the spouse’s reasonable needs; and
(b) Is unable to support them self through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
If the court makes the findings above, then the court can issue an order for maintenance “in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
(a) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age, and the physical and emotional condition of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. ”
The obligation to pay maintenance (aka spousal support) terminates upon the death of either party or the remarriage of the party receiving maintenance unless otherwise agreed in writing or expressly provided in the decree . Ky. Rev. Stat. § 403.250. Please note that cohabitation is not mentioned in the statute but the parties may agree in writing to other conditions that terminate the obligation to pay maintenance and that includes cohabitation.
Spouses often want to include maintenance (aka spousal support) and cohabitation as a criteria but what is cohabitation? Is it a roommate situation? Does it require the roommate to be of the opposite sex? Is it when the spouse starts to have sex with another person? Is it when the spouse has someone sleep over one night, two nights, three nights, etc? Is it when someone pays a bill for the spouse one time, two times, etc? What if the people are just having sex or just going out without spending the night at the spouse’s place and without paying any bills or contributing to the household expenses? As you can see, the questions are many and proving them clearly involves a great deal of time and effort which translates to expense.
In Kentucky, the Supreme Court took up the question of cohabitation as grounds to end the obligation to pay maintenance in Combs v. Combs, 787 S.W.2d 260, 262 (Ky. 1990) and set forth the following elements to consider:
1. Duration — It should never be the intention of the Court to allow for maintenance reduction based upon casual “overnights” or dating. A showing of substantially changed circumstances under KRS 403.250 (1) based upon cohabitation, necessarily involves proof of some permanency or long-term relationship.
2. Economic Benefit — The relationship must be such to place the cohabitating spouse in a position which avails that spouse of a substantial economic benefit. The scope and extent of the economic benefit should be closely scrutinized. If the “cohabitation” does not change the cohabitating spouse’s economic position, then reductions should not be permitted.
3. Intent of the Parties — Does it appear that the cohabitating spouse is avoiding re-marriage to keep maintenance? Does it appear from the circumstances that the cohabitating parties intend to establish a “lasting relationship?”
4. Nature of the Living Arrangements — Does it appear that the cohabitation is merely a space sharing situation or is there one common household?
5. Nature of the Financial Arrangements — Is there a “pooling of assets?” Is there actually a joint or team effort in the living arrangement? Who pays the bills and how are they paid?
6. Likelihood of a Continued Relationship — Does it appear that the relationship will continue in the future? Do the parties intend the relationship to continue indefinitely?
As you can tell from the list, proving the elements of maintenance (aka spousal support) and cohabitation is likely to be very time consuming and expensive which is why you need to hire an experienced family law attorney who is well versed in these matters. We invite you to contact us or call the Law Offices of John Schmidt & Associates PLLC today at (502) 509-1490 to schedule an appointment to speak with an experienced attorney who can help you navigate these issues.