See also:
Cohabitation agreements in Connecticut
Contents
§ 1. Cohabitation without Marriage or Civil Union
Appendix: Sexual Assault in A Marital or Cohabitating Relationship
Tables
Table 1. Unreported Connecticut decisions on cohabitation without marriage
Table 2. ALR annotations on cohabitation without marriage
Table 3. ALR annotations on cohabitation during divorce
Table 4. Unreported Connecticut decisions on adultery during divorce
Table 5. Connecticut's Cohabitation Statute
Table 6. ALR annotation on cohabitation following divorce
Table 7. Unpublished Connecticut Decisions: Cohabitation following divorce
Figures
Figure 1. Motion for modification and/or termination of periodic alimony
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SCOPE: |
Bibliographic resources relating to the legal effect of cohabitation on persons not married or parties to a civil union¾including contracts and agreements between them, child custody and visitation, and property rights.
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SEE ALSO: |
· Cohabitation agreements in Connecticut
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DEFINITIONS: |
· “We agree with the trial referee that cohabitation alone does not create any contractual relationship or, unlike marriage, impose other legal duties upon the parties. In this jurisdiction, common law marriages are not accorded validity . . . . The rights and obligations that attend a valid marriage simply do not arise where the parties choose to cohabit outside the marital relationship . . . .Ordinary contract principles are not suspended, however, for unmarried persons living together, whether or not they engage in sexual activity.” Boland v. Catalano, 202 Conn. 333, 339, 521 A.2d 142 (1987). · Loughlin v. Loughlin, 93 Conn. App. 618, 628-629, 889 A.2d 902 (2006). “With respect to the effect of cohabitation by those who hold themselves out as husband and wife, the law of this jurisdiction is clear. ‘Although other jurisdictions may recognize common-law marriage or accord legal consequences to informal marriage relationships, Connecticut definitely does not. . . . It follows that although two persons cohabit and conduct themselves as a married couple, our law neither grants to nor imposes upon them marital status.’ (Citations omitted.) McAnerney v. McAnerney, 165 Conn. 277, 285, 334 A.2d 437 (1973); see also Hames v. Hames, supra, 163 Conn. 592-93, 597; State ex rel. Felson v. Allen, 129 Conn. 427, 432, 29 A.2d 306 (1942). ‘The rights and obligations that attend a valid marriage simply do not arise where the parties choose to cohabit outside the marital relationship.’ Boland v. Catalano, 202 Conn. 333, 339, 521 A.2d 142 (1987).
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STATUTES:
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· Conn. Gen. Stat. (2008) § 53a‑67(b). Cohabitation as affirmative defense in certain criminal sexual offenses.
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COURT CASES:
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· Stern v. Stern, No. FA 07-4106232 S (Conn. Super. Ct. Feb. 11, 2008 J.D. New London at Norwich). “The marriage is nine years in length. Plaintiff's request that the several years of cohabitation between the parties which preceded their nuptials be considered cannot be accommodated either for awarding alimony or for property distribution purposes; as our supreme court has directed, ‘. . . given Connecticut's policy of drawing a clear distinction between marriage and cohabitation, and of awarding greater rights and protections to persons who make the formal legal commitment of marriage, `it would be incongruous to conclude that a court, when entertaining financial orders pursuant to §§ 46b-81 and 46b-82, may take into account a period of premarital cohabitation as an additional equitable consideration . . .,'" · “Loughlin v. Loughlin, 280 Conn. 632, 910 A.2d 963 (2006) makes it very clear that when the Court considers the ‘length of the marriage’’criterion prescribed in the statutes as they relate to alimony and’distribution of the parties' estates, it cannot consider cohabitation’preceding the marriage.” Brownell v. Brownell, No. FA 06 401 73 48 S (J.D. Fairfield at Bridgeport, May 3, 2007) · Weicker v. Granatowski, No. 398167 (Conn. Super. Ct., Bridgeport, Sep. 2, 2003). 35 Conn. L. Rptr. 333 (September 29, 2003). “What is left is that the parties carried on a platonic relationship while living in the Guilford home for two years; the defendant paid primarily all of the expenses, with the plaintiff contributing only furniture and food supplies. From the evidence presented, the court does not find probable cause that the parties expressly or implicitly agreed that the plaintiff would have an interest in the Guilford property, nor can the court divine an equitable basis for such an interest. Even if the court were to find that the parties carried on a romantic relationship while in the Guilford home, as observed supra, "cohabitation alone does not create any contractual relationship or . . . impose other legal duties upon the parties." Boland v. Catalano, . . . 202 Conn.[ 333,] 339. · Herring v. Daniels, 70 Conn. App. 649, 656 (2002). “Rather, where the parties have established an unmarried, cohabiting relationship, it is the specific conduct of the parties within that relationship that determines their respective rights and obligations, including the treatment of their individual property . . . . Any such finding must be determined by reference to the unique circumstances and arrangements between the parties present in each case. Those matters are questions of fact that are within the singular province of the trial court, and can only be determined by evaluating the credibility of the witnesses and weighing conflicting evidence.” · Boland v. Catalano, 202 Conn. 333, 339, 521 A.2d 142 (1987). “Ordinary contract principles are not suspended, however, for unmarried persons living together, whether or not they engage in sexual activity.” · Burns v. Koellmer, 11 Conn. App. 375, 381, 527 A.2d 1210 (1987). “Thus, a contract, express or implied, or some other tacit understanding between the parties who are not married to one another which does not rely upon their sexual behavior is enforceable in the courts of this state.” · Gallo v. Gallo, 184 Conn. 36, 45, 440 A.2d 782 (1981). “ The testimony before the trial court concerned only the woman with whom the defendant was cohabiting at the time of the hearing. Thus there is no basis in the evidence for the trial court to extend the restriction to any other woman. The judgment must be modified so that the overnight visitation restriction applies only to the particular woman who was living with the defendant at the time of the hearing.”
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COURT CASES: (Other states)
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· Marvin v. Marvin, 557 P.2d 106 (1976). California. · Beal v. Beal, 577 P2d 507(1978). Oregon.
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DIGESTS: |
· Cynthia C. George and Thomas D. Colin. Connecticut Family Law Citations: Cohabitation
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TEXTS & TREATISES:
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· 8 Arnold H. Rutkin et al. Connecticut Practice Series. Family Law And Practice with Forms (2d ed. 2000). Chapter 42. Child Custody and Visitation § 42.2 Rights of unmarried or non-cohabiting parents · 8A Arnold H. Rutkin et al. Connecticut Practice Series. Family Law And Practice with Forms (2d ed. 2000). Chapter 47. Property rights and agreements between unmarried cohabitants § 47.1. In general § 47.3. Validity § 47.6. Separate property § 47.7. Joint purchases and contracts § 47.8. Enforcement of cohabitation agreements § 47.9. Termination of living together arrangements · 6 Arnold H. Rutkin, Family Law and Practice (2007). Chapter 65. Unmarried Cohabitants § 65.02. Unmarried cohabitants and the courts § 65.03. Issues facing unmarried cohabitants [1]. Support (Alimony or maintenance) [a]. In general [b]. Post-divorce cohabitation as support determinant [2]. Children and legitimacy [3]. Custody and visitation [a]. “Adverse Effect” standard [b]. Psychological parent’s status [c]. Post-Divorce cohabitation as a custody determinant [4]. Child support [5]. Adoption [6]. Inheritance [7]. Taxes [8]. Cohabitants rights vis-à-vis third parties [a]. Loss of consortium [b]. Credit [c]. Other rights and benefits [i]. Landlord-tenant anti-discrimination laws [ii]. Single-family zoning ordinances [iii]. Insurance coverage [iv]. Workers’ compensation and employer health insurance benefits [v]. Homestead statutes [vi]. Medical benefits [9]. Criminal statutes restricting cohabitants’ acts · Samuel Green and John V. Long. Marriage and Family Law Agreements (2d ed. 1984). Chapter 3. Cohabitation · Toni Ihara et al. The Living Together Kit: A Legal Guide For Unmarried Couples (12th ed. 2004). Chapter 1. Living together: An introduction Chapter 2. The legal state of living together Chapter 3. Living together agreements: Why and how A. Ten tips for writing a living together agreement B. Property agreements C. Agreement to share ownership of a joint purchase D. Agreement covering joint projects E. Agreement covering homemaker services F. Agreement for artists and inventors G. Agreement for people in school H. Agreement to protect person who moves a long distance or gives up a job Chapter 4. Debt, credit, taxes, and more: Practical aspects of living together Chapter 5. Renting and sharing a home Chapter 6. Buying a house together Chapter 7. Starting a family Chapter 8. You and your ex-spouse and children from a prior relationship Chapter 9. Wills and estate planning Chapter 10. Moving on—When unmarried couples separate Chapter 11. Lawyers and legal research · Graham Douthwaite. Unmarried Couples and the Law (1979). Chapter 2. Ramifications of the unmarried status Chapter 3. Status of children of relationship Chapter 4. Rights to accumulated property and value of services rendered during cohabitation Chapter 6. State-by-state commentary § 6.7. Connecticut
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PERIODICALS
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· Dianne S. Burden, Remarriage Vs. Cohabitation: Tradition Doesn’t Always Make Sense, 12 Connecticut Family Law Journal 4 (1993). · Rebecca Melton Rosubsky, Legal Rights Of Unmarried Heterosexual And Homosexual Couples, 10 Connecticut Family Law Journal 8 (1991). · Edith F. McClure, Marvin Revisited: A Comment On Boland V. Catalano, 5 Connecticut Family Law Journal 51 (1987).
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ENCYCLOPEDIAS
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· 46 Am. Jur. 2d Joint Ventures (2006). § 53. Effect of marital relationship or unmarried cohabitation. · 59A Am. Jur. 2d Partnerships (2003). § 204. Unmarried coinhabitants of opposite sex as partners · see Table 1: ALR Annotations on Cohabitation without marriage · Child Custody And Visitation Rights As Affected By Sexual Lifestyle Of Parents, 3 Preparation for Settlement and Trial 659 (1986). · Cause Of Action By Unmarried Cohabitant To Enforce Agreement Or Understanding Regarding Support Or Division Of Property, 8 COA 2d 1 (1995).
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COMPILER |
Compiled by Lawrence Cheeseman, Supervising Law Librarian, Connecticut Judicial Branch Law Library at Middletown, One Court Street, Middletown, CT 06457. (860) 343‑6560. EMAIL
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Table 1 Unreported Connecticut decisions on cohabitation without marriage
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Unreported Connecticut Decisions: Cohabitation without Marriage
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Cheiken v. Greneman-Cheiken, No. FA 03 0733308 (Aug. 24, 2004)
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“ . . .the defendant filed a three-count cross complaint. Count one of the cross complaint mirrors plaintiff's complaint with the added claim that ‘[f]or a period of approximately seven years prior to their marriage, the plaintiff and defendant lived together as a family unit and to all intents and purposes as husband and wife’; count two alleges an express or implied promise during the period of premarital cohabitation; count three alleges unjust enrichment during the same period.”
*********** “The parties agree and this court concurs that the defendant should not have ‘two bites of the apple’ - in other words, the contributions during the cohabitation period should not be considered during division of the property pursuant to the marriage dissolution and also under separate claims for unjust enrichment and breach of promise. The trial court may consider the period of cohabitation during which the defendant allegedly made substantial contributions to the success of the plaintiff's business operations either under breach of promise and unjust enrichment claims; or, the trial court may take it into account in a dissolution proceeding which considers the entire estate of each party, including the plaintiff's business operations, as well as the contribution of each in the acquisition or appreciation in value of their respective estates.”
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Rosengarten v. Downes, 71 Conn. App. 372, 393, 802 A.2d 170 (2002). |
“Finally, the plaintiff relies on Boland v. Catalano, 202 Conn. 333, 521 A.2d 142 (1987), in support of his argument that Connecticut recognizes nontraditional relationships and affords the parties to such relationships a judicial remedy for the dissolution of those relationships. Specifically, he argues that under Boland this court can offer dissolution relief to the parties of this civil union under the theory that the partners to the union entered into an express contract, the terms of which are defined by § 1201 et seq. of title 15 of the Vermont Statutes Annotated. We disagree for the reasons already stated and because the plaintiff did not plead any express or implied contract to share earnings or assets.”
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Champoux v. Porter, No. CV 98 0057585 S (Dec. 2, 1998), 23 Conn. L. Reptr. No. 6,219 (January 4, 1999), 1998 Ct. Sup. 14572, 1998 WL 867270 (Conn. Super. 1998).
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In the present case, the court finds that no agreement or understanding existed between the parties that each would accrue individual credit for each contribution made to buy and keep the home to be applied to the proceeds resulting from a future sale. Every sum used for these purposes was a gift to the other as a joint owner so that any disparity in amount contributed is immaterial.
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Vibert v. Atchley, No. CV93-0346622 (May 23, 1996), 16 Conn. L. Reptr. No. 19, 604 (July 8, 1996), 1996 Ct. Sup. 4332-JJJJ Page 4125, 1996 WL 364777 (Conn. Super. 1996).
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Accordingly, because Connecticut does not recognize common law marriage and cohabitation alone does not create any contractual relationship or give rise to any other rights and obligations that attend to a valid marriage, such as the continuing duty to support upon which an award of alimony is primarily based, no right to palimony exists under Connecticut law. Nevertheless, "[o]rdinary contract principles are not suspended . . . for unmarried persons living together, whether or not they engage in sexual activity. Contracts expressly providing for the performance of sexual acts, of course, have been characterized as meretricious and held unenforceable as violative of public policy." Boland v. Catalano, supra, 202 Conn. [333,]339. "`[T]he courts should enforce express contracts between nonmarital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services. . . . In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case.'" Boland v. Catalano, supra, 202 Conn. 340-41, quoting Marvin v. Marvin, 18 Cal.3d 660, 665, 557 P.2d 106, 134 Cal. Rptr. 815 (1976). "Thus, a contract, express or implied, or some other tacit understanding between persons who are not married to one another which does not rely upon their sexual behavior is enforceable in the courts of this state." Burns v. Koellmer, 11 Conn. App. 375, 381, 527 A.2d 1210 (1987). Based on the foregoing, the plaintiff and the defendant entered into an enforceable contract when the defendant signed their June 13, 1991 agreement.
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Table 2 ALR annotations on cohabitation without marriage
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ALR Annotations: Cohabitation without Marriage
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Subject |
Title of Annotation |
Citation
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Automobile Insurance |
· Annotation, Who Is A “Spouse” Within Clause Of Automobile Liability, Uninsured Motorist, Or No-Fault Insurance Policy Defining Additional Insured
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36 ALR4th 588 (1985) |
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Children |
· Alan Stephens, Annotation, Parental Rights Of Man Who Is Not Biological Or Adoptive Father Of Child But Was Husband Or Cohabitant Or Mother When Child Was Conceived Or Born
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84 ALR4th 655 (1991)
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Child Support
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· Alice M. Wright, Annotation, Right To Credit On Child Support Arrearages For Time Parties Resided Together After Separation Or Divorce
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104 ALR5th 605 (2002) |
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Contracts |
· Jean E. Maess, Annotation, Order Awarding Temporary Support Or Living Expenses Upon Separation Of Unmarried Partners Pending Contract Action Based Upon Services Relating To Personal Relationship · Jane Massey Draper, Annotation, Recovery For Services Rendered By Persons Living In Apparent Relation Of Husband And Wife Without Express Agreement For Compensation
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35 ALR4th 409 (1985)
94 ALR3d 552 (1979) |
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Domestic Violence
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· Elizabeth Trainor, Annotation, “Cohabitation” For Purposes Of Domestic Violence Statutes |
71 ALR5th 285 (1999) |
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Housing |
· Caroll J. Miller, Annotation, What Constitutes Illegal Discrimination Under State Statutory Prohibition Against Discrimination In Housing Accommodations On Account Of Marital Status
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33 ALR4th 964 (1984) |
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Palimony |
· William H. Danne, Annotation, “Palimony” Actions for support following termination of nonmarital relationships, 21 ALR6th 351 (2007). |
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Privileged communication |
· Annotation, Communication Between Unmarried Couple Living Together As Privileged
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4 ALR4th 422 (1981)
[cont’d] |
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Subject
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Title of Annotation
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Citation
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Property |
· George L. Blum, Annotation, Property Rights Arising From Relationship Of Couple Cohabiting Without Marriage · Wendy Evans Lehmann, Annotation, Estate Created By Deed To Persons Described As Husband And Wife But Not Legally Married
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69 ALR5th 219 (1999)
9 ALR4th 1189 (1981)
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Tort |
· Sonja A. Soehnel, Annotation, Action For Loss Of Consortium Based On Nonmarital Cohabitation · Charles Plovanich, Annotation, Recovery For Loss Of Consortium For Injury Occurring Prior To Marriage
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40 ALR4th 553 (1985) 5 ALR4th 300 (1981) |
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Zoning |
· Vitauts M. Gulbis, Annotation, Validity Of Ordinance Restricting Number Of Unrelated Persons Who Can Live Together In Residential Zoning
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12 ALR4th 238 (1982) |
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SCOPE: |
Bibliographic sources relating to the effect on alimony, custody and visitation of a spouse's cohabitation while a divorce action is pending.
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DEFINITIONS: |
· “The defendant claims first that, in fashioning its financial orders, the court improperly relied on the total length of the parties' relationship rather than on the length of their second marriage only, in violation of [Conn. Gen. Stats §§ 46b-81 and 46b-82. We agree.” Loughlin v. Loughlin, 93 Conn. App. 618, 625,889 A.2d 902 (2006). · “While alimony, in whatever form, or an assignment of property is not to be considered either as a reward for virtue or as a punishment for wrongdoing, a spouse whose conduct has contributed substantially to the breakdown of the marriage should not expect to receive financial kudos for his or her misconduct. Moreover, in considering the gravity of such misconduct it is entirely proper for the court to assess the impact of the errant spouse's conduct on the other spouse. Because in making its assignment of property the trial court had a reasonable basis for its disposition we see no reason for disturbing the result. McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982).” Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982).
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STATUTES: |
· Conn. Gen. Stat. (2008) § 46b-40 Grounds for dissolution of marriage; legal separation; annulment (c) (3) adultery (c) (8) intolerable cruelty § 53a-81 Adultery: Class A Misdemeanor. REPEALED. P.A. 91-19 §2 (effective Oct. 1, 1991)
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LEGISLATIVE HISTORIES: |
· 1991 Conn. Acts 19. An act concerning adultery. Substitute House Bill No. 5082.
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CASES: |
· Makoski v. Makoski, No. FA04 041 26 17S (Conn. Super. Ct., J.D. Fairfield at Bridgeport, May 12, 2005). “While the wife candidly admits a sexual relationship outside of the marriage during the latter months of the marriage the marriage had broken down a long time prior thereto. The husband is primarily responsible for the breakdown of the marriage and the plaintiff shall prevail on her complaint based on irretrievable breakdown. The defendant's counter-claim alleging desertion and adultery are stricken in that they are not the cause of the marital breakdown.” · Venuti v. Venuti, 185 Conn. 156, 159, 440 A.2d 878 (1981). “A review of the record shows that the trial court did not err in finding that adultery was not the cause of the breakdown of the marriage. There is, therefore, no basis in the statutes for the trial court to have considered any adultery by the plaintiff in making its award of alimony and counsel fees and the trial court did not abuse its discretion when it made those awards.” · Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982). “ While alimony, in whatever form, or an assignment of property is not to be considered either as a reward for virtue or as a punishment for wrongdoing, a spouse whose conduct has contributed substantially to the breakdown of the marriage should not expect to receive financial kudos for his or her misconduct. Moreover, in considering the gravity of such misconduct it is entirely proper for the court to assess the impact of the errant spouse's conduct on the other spouse. Because in making its assignment of property the trial court had a reasonable basis for its disposition we see no reason for disturbing the result.
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WEST KEY NUMBERS:
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· Husband and Wife # 279 · Divorce # 245 |
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DIGESTS: |
· Cynthia C. George and Thomas D. Colin. Connecticut Family Law Citations: Cohabitation
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ENCYCLOPEDIAS: |
· See Table 5: ALR Annotations: Cohabitation During Divorce
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TEXTS & TREATISES: |
· 8 Arnold H. Rutkin et al. Connecticut Practice Series. Family Law And Practice with Forms (2d ed. 2000). . Chapter 33 Alimony in general § 33.2 Award to either spouse. [Discussion of the effect of adultery on alimony award] § 33.6. Causes for the dissolution [Issue of fault in awarding alimony] § 33.17 Other factors considered [Extra-marital affair] Chapter 42 Child custody and visitation § 42.31 Causes for dissolution § 43.34 Other parental misconduct [Adulterous relationship]
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LAW REVIEWS: |
· Paul Smith, Jurisprudence And Adultery In Modern Day Connecticut, 3 Connecticut Family Law Journal 1 (November 1984). “What do you tell your clients when they ask what they can do socially after commencing a dissolution action.”
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COMPILER: |
Lawrence Cheeseman, Connecticut Judicial Branch, Law Library At Middletown, CT 06457. (860) 343-6560. EMAIL
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Table 3 ALR annotations on cohabitation during divorce
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ALR Annotations: Cohabitation During Divorce
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Subject |
Title of Annotation |
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Adultery |
· Annotation, Cohabitation Under Marriage Contracted After Divorce Decree As Adultery, Where Decree Later Reversed Or Set Aside, 63 ALR2d 816 (1959)
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Alimony |
· Robin Cheryl Miller, Annotation, Effect Of Same-Sex Relationship On Right To Spousal Support, 73 ALR5th 599 (1999). · Kristine Cordier Karnezis, Annotation, Adulterous Wife’s Right To Permanent Alimony, 86 ALR3d 97 (1978)
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Children |
· Robin Cheryl Miller, Annotation, Child Custody And Visitation Rights Arising From Same-Sex Relationship, 80 ALR5th 1 (2000) · Diane M. Allen, Annotation, Propriety Of Provision Of Custody Or Visitation Order Designed To Insulate Child From Parent’s Extramarital Sexual Relationships, 40 ALR4th 812 (1985)
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Inheritance |
· Gregory G. Sarno, Annotation, Rights In Decedent’s Estate As Between Lawful And Putative Spouses, 81 ALR3d 453 (1980).
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Table 4 Unreported Connecticut decisions on adultery during divorce
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Unreported Connecticut Decisions: Adultery During Divorce
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Morson v. Morson, No. FA99 0175656 S (Sep. 13, 2001), 2001 Ct. Sup. 12743, 2001 WL 1200315. |
The parties' final separation occurred on November 17, 1999 when, after requesting a divorce, the defendant left the home. The court finds that the defendant's one act of adultery prior to the final separation did not contribute to the marriage breakdown which was total prior to that episode, Venuti v. Venuti, 185 Conn. 156 (1981).
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Marchiano v. Marchiano, No. FA96 0156039 S (Nov. 28, 1997), 1997 Ct. Sup. 11568, 11569, 1997 WL 753406.
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The causes of the marriage breakdown are found rooted in a generalized incompatibility of life style. The marriage was irretrievably broken down by the summer of 1996. Each party has behaved as an unmarried person since then, 185 Venuti v. Venuti, 156 Conn. The court concludes that fault is not to be assigned to either party.
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Blackburn v. Blackburn, No. FA95 0144698 S (Nov. 6, 1997), 1997 Ct. Sup. 12093, 12095, 1997 WL 724499.
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In April, 1996, the defendant returned to the marital home at 2:00 a.m. to find the plaintiff with a man who the defendant assaulted. Since this episode occurred one year after this dissolution suit was commenced, the court finds such evidence not relevant to the causes of the marriage breakdown, Venuti v. Venuti, 185 Conn. 156 (1981).
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Fischer v. Fischer, 45 Conn. Sup. 94, 96, 700 A.2d 123 (1995) |
“The breakdown of the marriage began in 1981 when the defendant began seeing another woman. This relationship ripened into a long term liaison that continued until the trial of the present case. For her part, the plaintiff admitted committing adultery with a house guest who stayed at the family home between August and November of 1982. Since the breakdown of the marriage was complete by the time the separation agreement was executed, the plaintiff's behavior after June, 1982, did not contribute to the breakdown. Venuti v. Venuti, 185 Conn. 156, 158-59, 440 A.2d 878 (1981). The defendant's behavior is found to be the prime cause for the breakdown.”
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Paul v. Paul, No. FA93 0117672 S (Sep. 29, 1994), 1994 Ct. Sup. 9738, 9741-9742, 1994 WL 564051. |
Regarding the defendant's adultery as impacting on the custody issue, it is correct that a party's morals as demonstrated by conduct may be considered by the court. Adams v. Adams, 180 Conn. 498; Sullivan v. Sullivan, 141 Conn. 235. The plaintiff's living with Mrs. Goodwin occurred after the breakdown and is not considered as bearing on fault. Venuti v. Venuti, 185 Conn. 156. The court can consider the behavior of each party to the time of trial in determining how each party's behavior may impact the child, for the question is not who was the better custodian in the past, but which party is the better custodian now. Yontel v. Yontel, 185 Conn. 275, 283. [cont’d]
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Buechele v. Buechele, No. 32 54 02 (May 26, 1993), 1993 Ct. Sup. 5251, 5254, 1993 WL 190426. |
In Venuti v. Venuti, 185 Conn. 156, 159 (1981), the court stated in part as follows: "A review of the record shows that the trial court did not err in finding that adultery was not the cause of the breakdown of the marriage. There is, therefore, no basis in the statutes for the trial court to have considered any adultery by the plaintiff in making its award of alimony and counsel fees. . . ." The court finds that the defendant's involvement with a third party and her existing pregnancy is not a factor in the cause of the breakdown of the marriage.
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Mason v. Mason, No. 30 06 62 (Nov. 8, 1991), 1991 Ct. Sup. 9485, 9490-91, 1991 WL 240727.
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In Venuti v. Venuti, 185 Conn. 156 (1981), our Supreme Court considered the questions of awarding alimony and counsel fees to an adulterous spouse. The Court noted on pages 157 and 158 that, under the dissolution statute, adultery is one of ten causes for granting a dissolution but a trial court may dissolve a marriage with irretrievable breakdown as the basis even though another cause is proven. Also that adultery is not listed as a factor in General Statutes 46b-62, 46b-82 to be considered in making an award unless it is one of causes of the dissolution; and further that, as a cause, it is only a factor to consider together with all the other factors enumerated in the General Statutes; and concluding on page 148 with the following: "Thus, there is no longer a foundation for the claim that as a matter of law it is an abuse of discretion to award alimony and counsel fees to an adulterous spouse." In the Venuti case the trial court found that the adultery was not a cause of the breakdown.
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Foley v. Foley, No. FA-89-292125 (Apr. 10, 1991), 1991 Ct. Sup. 3105, 3106-3107, 1991 WL 61184. |
The court does not find that adultery was the cause of the breakdown of this marriage. There is, therefore, no basis in the statutes and case law for this court to have considered any adultery by the plaintiff in making any award of alimony, etc., Venuti v. Venuti, 185 Conn. 159. Adultery will not be inferred from circumstantial evidence, unless there is both an opportunity and an adulterous disposition. Eberhard v. Eberhard, 4 N.J. 535 (1950). Moreover, the existence of both the opportunity and the inclination without more does not necessarily compel a conclusion that adultery has occurred. Antonata v. Antonata, 85 Conn. 390 (1912).
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SCOPE: |
Bibliographic sources relating to the effect on alimony, custody and visitation of cohabitation after a divorce is final.
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DEFINITIONS: |
· Cohabitation vs. living together: “Section 46b-86 (b) does not use the word cohabitation. The legislature instead ‘chose the broader language of `living with another person' rather than `cohabitation'. . . .’ Because, however, ‘living with another’ person without financial benefit did not establish sufficient reason to refashion an award of alimony under General Statutes § 46b-81, the legislature imposed the additional requirement that the party making alimony payments prove that the living arrangement has resulted in a change in circumstances that alters the financial needs of the alimony recipient. Therefore, this additional requirement, in effect, serves as a limitation. Pursuant to § 46b-86 (b), the nonmarital union must be one with attendant financial consequences before the trial court may alter an award of alimony.” DeMaria v. DeMaria, 247 Conn. 715, 720, 724 A.2d 1088 (1999). · COHABITATION STATUTE: General Statutes 46b-86(b) is the so-called ‘cohabitation’ statute, which was enacted four years after 36b-86(a)to ‘correct the injustice of making a party pay alimony when his or her ex-spouse is living with a person of the opposite sex, without marrying, to prevent the loss of support.’ H.B. No. 6174, 1977 Sess. (Statement of Purpose). Under 46b-86(b), ‘the superior court may, in its discretion and upon notice and hearing . . . suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person’ and that this arrangement has caused ‘a change of circumstances’ which ‘alter(s] the financial Needs’ of the alimony recipient. (Emphasis added.) As we have noted, the provision places the burden of proof on the party moving for such a modification.” Silber v. Silber, No. FST FA 94 0142065 S (J.D. Stamford-Norwalk at Stamford, Dec. 31, 2007)
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STATUTES: |
· Conn. Gen. Stat. (2008) § 46b‑86(b). Modification of alimony or support orders and judgments.
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LEGISLATIVE HISTORIES: |
· P.A. 77-394. The "cohabitation" statute. H.B. No. 6174 (1977 Session).
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FORMS: |
· Motion for modification of alimony based on cohabitation¾Form, 8 Arnold H. Rutkin, Connecticut Practice Series, Family Law and Practice With Forms (2d ed. 2000) § 35.32.
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CASES: |
· DiStefano v. DiStefano, 67 Conn. App. 628, 633, 787 A.2d 675 (2002). “In accordance with General Statutes § 46b-86 (b) and the holding in DeMaria, before the payment of alimony can be modified or terminated, two requirements must be established. First, it must be shown that the party receiving the alimony is cohabitating with another individual. If it is proven that there is cohabitation, the party seeking to alter the terms of the alimony payments must then establish that the recipient's financial needs have been altered as a result of the cohabitation.” · DeMaria v. DeMaria, 247 Conn. 715, 719-720, 724 A.2d 1088 (1999). “The Appellate Court essentially treated the word ‘cohabit’ as synonymous with ‘living together,’ and concluded that in view of its finding that the plaintiff was living with an unrelated male, the trial court should have terminated her alimony . . . . We conclude, in accordance with the definition contained in § 46b-86 (b), that the trial court properly construed the term ‘cohabitation’ as used in the dissolution judgment to include the financial impact of the living arrangement on the cohabiting spouse, and accordingly, we reverse the judgment of the Appellate Court.” · D'Ascanio v. D'Ascanio, 237 Conn. 481, 486, 678 A.2d 469 (1996). “On her cross appeal, however, the defendant asserts that no evidence was presented to support the trial court's finding that her living arrangement with Griffin caused such a change of circumstances as to alter her financial needs. We disagree.” · Mihalyak v. Mihalyak, 30 Conn. App. 516, 521, 620 A.2d 1327 (1993). “The defendant contends, and we agree, that the dissolution judgment itself provided for termination of the alimony upon the occurrence of the plaintiff's cohabitation. The provisions of General Statutes § 46b-86 are inapplicable. The trial court should have considered the terms of the dissolution decree, which incorporated the agreement of the parties in the form of a stipulation.” · Charpentier v. Charpentier, 206 Conn. 150, 152, 536 A.2d 948 (1988). “A major contention of the defendant is that the trial court's financial orders were impermissibly influenced by her admitted lesbian sexual preference. We conclude that the trial court's financial orders were not so premised, but instead reasonably reflected the economic burden imposed on the plaintiff by the custody decree as the parent primarily responsible for raising five young children.” · Duhl v. Duhl, 7 Conn. App. 92, 94, 507 A.2d 523 (1986). “The plaintiff argues, however, that 46b-86(b) requires a substantial change in circumstances and some finding by the court that the relationship will endure before a court may terminate alimony. The plaintiff summarized this claim during oral argument before this court by stating that the trial court must find a substantial change in financial circumstances, namely the financial interdependence such as is found in a common law marriage, before it may order the termination of alimony payments. No such requirement is to be found in the statute nor do we feel that such a requirement is necessary to fulfill its purpose.” · Connolly v. Connolly, 191 Conn. 468, 475, 464 A.2d 837 (1983). “By its very terms, General Statutes 46b-86(b) mandates that when the statute is to be invoked notice must be given to the parties and a hearing held on the claim.” · Kaplan v. Kaplan, 185 Conn. 42, 45-46, 440 A.2d 252 (1981). “We note that the General Assembly chose the broader language of ‘living with another person’ rather than ‘cohabitation’ and that this provision requires only a ‘change’ of circumstances, not a ‘substantial change’ as required by 46b-86 (a).” · Gallo v. Gallo, 184 Conn. 36, 45, 440 A.2d 782 (1981). "The testimony before the trial court concerned only the woman with whom the defendant was cohabiting at the time of the hearing. Thus there is no basis in the evidence for the trial court to extend the restriction to any other woman. The judgment must be modified so that the overnight visitation restriction applies only to the particular woman who was living with the defendant at the time of the hearing." · McAnerney v. McAnerney 165 Conn. 277, 287, 334 A2d 437 (1973). "But no policy or rule of equity makes a divorced wife accountable to her former husband for her conduct . . . any more than it makes the enforcement of a debt contingent on a creditor's chastity."
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WEST KEY NUMBERS:
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· Husband and Wife # 279 · Divorce # 245 |
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DIGESTS: |
· Connecticut Family Law Citations: Cohabitation
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ENCYCLOPEDIAS: |
· 27B C.J.S. Divorce (1986). § 409. Modification or vacation of allowance—cohabitation of recipient spouse · 24A American Jurisprudence |