, Derry, New Hampshire

May 24, 2012

N.H. courts find defining cohabitation a challenge

About The Law
Andrew Myers

What is cohabitation?

As we dive deeper into the 21st century, passion to redefine or push the envelope on definitions of pretty much everything, this question landed on the desk of the New Hampshire Supreme Court.

The court struck the ball back down to the trial court. But not until after looking the word up in five dictionaries.

A Texas couple raised the question. They divorced after 42 years of marriage. The wife got the couple's Laconia, N.H., property and alimony of $25,000 per year. The alimony award was tied to a court-ordered condition that it would end if the wife "cohabitates with an unrelated adult male."

Key facts are that the ex-wife moved out of the Laconia home and into the top floor of a Plymouth residence owned by a man she met through an online dating service. The Plymouth fellow is said to have lived on the first level. Court records indicate the two shared living space on the middle level.

The New Hampshire Family Court held that this was not enough to find cohabitation and alimony would continue.

Claiming the Family Court failed to establish a workable definition of cohabitation, the ex-husband appealed.

Neither the New Hampshire Supreme Court nor the state Legislature had ever defined the word. Evidence of a sexual relationship, the family court found, was not necessarily required. But, there must be more than occupying the same living area and sharing expenses. There must be a common and mutual purpose to manage expenses, to make decisions plus personal progress toward these goals.

The ex-wife apparently paid no rent to the Plymouth male pal, but did pay about $300 per month for food and often cooked for him. They shared rooms during vacations. Mrs. X wrote to her children that the two had discussed marriage, but that finances and other things were "complicated."

This is where five dictionaries were consulted. Cases from five other jurisdictions were also reviewed. So was the old "Corpus Juris Secundum," the law books in the introduction to the classic "Perry Mason" TV show.

Cohabitation, the decision holds, can be found after considering a number of factors set out in four paragraphs. Financial arrangements, sharing of expenses, joint accounts, the extent of the personal relationship and other factors would add up to a finding of cohabitation where the relationship resembles that of marriage.

Common use of appliances, furniture, vehicles and whether one person maintains personal items such as toiletries or clothing at the residence of the other are final deal-makers in matter of Raybeck and Raybeck, decided May 11, 2012, in the N.H. Supreme Court.

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Andrew Myers of Derry has law offices in Derry and North Andover. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to