You’re divorced. You agreed to pay your ex-wife spousal support as a part of your divorce settlement. She is now living with someone new and has for quite some time. Do you have to continue to pay her spousal support in this situation? The answer depends greatly on when your agreement was made, what type of spousal support you are paying her, and what provisions were included in your agreement.
In 2015 the North Dakota Legislature shook up the family law world by amending the spousal support statute to include some provisions regarding cohabitation. This statute now reads, in pertinent part, as follows:
“Unless otherwise agreed to by the parties in writing, upon an order of the court based on a preponderance of the evidence that the spouse receiving support has been habitually cohabiting with another individual in a relationship analogous to a marriage for one year or more, the Court shall terminate spousal support…the [above-referenced section] does not apply to rehabilitative support.”
On its face, the statute appears pretty straightforward. You cohabitate, you lose your spousal support. Well, so far three cases have made their way to the North Dakota Supreme Court as a result of differing interpretations and applications of this statute. These cases exemplify why it is important to have an experienced attorney help guide you through the divorce process when spousal support is an issue.
The very first case to address the cohabitation amendments to the spousal support statute was Bindas v. Bindas. Although the statute explicitly states that spousal support should terminate upon cohabitation “unless otherwise agreed,” the North Dakota Supreme Court essentially found the opposite in this case. In this regard, the Supreme Court stated that because the agreement did not mention cohabitation as a reason for the termination of spousal support, it could not be terminated despite the ex-spouse’s cohabitation. This decision rested mainly upon the timing of the entry of the agreement.
The next case to address this statute was Markegard v. Willoughby. In this case, the parties had agreed spousal support was payable until the obligee remarried or died. The North Dakota Supreme Court stated that this provision was not an “agreement otherwise” and terminated the spouse’s support due to cohabitation. This case again illustrates the importance of the timing of the agreement. But it also illustrates the importance of the wording of the agreement and the importance of providing a clear record in relation to the nature of the spousal support, e.g., whether it was permanent or rehabilitative.
The latest case to interpret this statute is O’Keeffe v. O’Keeffe. Like the prior two cases, in O’Keeffe, the parties reached an agreement on all issues, including spousal support. The parties agreed: 1) spousal support would be paid for 120 months; 2) spousal support would be non-modifiable, and 3) that spousal support would terminate upon the death of the obligee.
Despite the agreement saying spousal support terminated upon death and that the support obligation was “non-modifiable,” the North Dakota Supreme Court found the support obligation could be terminated upon cohabitation because the parties had not “otherwise agreed.” Interestingly, in addition to the potential drafting pitfalls parties need to be cognizant of when entering into an agreement, the Court also gave clear signals it was going to analyze the purpose behind the spousal support award and not just rely on the labels of “rehabilitative” or “permanent” used by the lower court. In fact, the North Dakota Supreme Court used the term “non-rehabilitative support” for the first time in its history, which may create even more litigation in the future.
These case summaries are over-simplified to say the least. But this just goes to show how complex spousal support cases can and have become in North Dakota. Whether you are going through a divorce now or whether you have gone through a divorce already and are thinking about making a request to the court to terminate your spousal support obligation, it is a good idea to retain an experienced family law attorney familiar with the ins-and-outs of spousal support.
If you need assistance with navigating the legal aspects of spousal support in North Dakota please contact us!