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CATCHING THE COHABITING EX-SPOUSE ALIMONY RECIPIENT

By Jason K Jensen, Private Investigator (P.I.)

Persistent Alimony – the Problem

If you have ever been divorced, are in the process of divorcing, or know someone who is divorced, then you know how alimony can pose a real hardship on the one paying alimony. It gets even harder if you discover that your ex-spouse may be “shacking up” with a new love interest. Meanwhile, each month that alimony check still has to be paid until you practically shout (internally to yourself), “Why don’t they just get married?!” The question is rhetorical. Your ex knows that once he/she remarries, alimony (in most cases) ends.

But there are rumors; you hear that the ex is possibly “engaged,” but there are no reports of a ring or a wedding date. Each time you run into your ex (at the store, at the kids’ school, etc.) the new love interest is there too. Each time you drive past the house on your way to work you notice both of their cars at the same address each morning. You too suspect they are cohabiting (living together like a husband and wife, and all that that entails). How do you get your alimony obligation terminated on the grounds of cohabitation? How do you bring this issue to light?

To do this right, consult an attorney first. You need to know what the law governing your jurisdiction. Many people believe (erroneously) that if you can show your ex-spouse is involved in a new sexual relationship, that terminates alimony. No. Not even close. Don’t run into court seeking to terminate alimony without a lawyer. If you blow your chance at terminating alimony, you may never get another.

Next, employ an experienced private investigator who has a tested track record in the court system. Do not hesitate to ask for case experience references. Working together, the attorney instructs the private investigator as to what evidence is needed to make the case.

What Must be Accomplished

Generally speaking, to terminate alimony for cohabitation you must prove that the couple is (1) residing together in a (2) “conjugal relationship” akin to (meaning “like”) a marriage. So let’s break that down:

Residing Together

First, show they share a residence. There are two ways to demonstrate that the couple is residing together.

One approach is to take volumes of pictures or video. You can interview neighbors, friends, coworkers, the landlord, and others in an effort to establish that these two share the residence where you suspect they are cohabiting.  However, if you start nosing around the neighborhood and take pictures, word from the neighbors will likely get back to your ex-spouse.  Moreover, if the new paramour still has his/her original home or apartment, your ex can claim that they are only “roommates.”

The second approach is actually the easier approach. Learning where the ex’s paramour used to reside is a lot easier. How, you ask? You can contract with a private investigator to run a database report about the paramour.  A comprehensive report will identify the person’s residential history, among other details. Investigate the last known address for the paramour. If it is occupied by a new family or is clearly unoccupied, then it becomes easy to show that the ex and his/her paramour live together simply because they are unable to claim they are living apart.  Beware: you must verify, in obtaining the comprehensive report, that the paramour is not the land owner. He may be renting it. He may be sharing the residence.  It is recommended that someone consult the County Recorder’s Office to identify the land owner and obtain the owner’s address. You can then provide the information to your attorney or private investigator, so that they can make contact with the landlord for a discreet conversation or a formal interview.  Moreover, copies of lease agreements and payments can be subpoenaed from that landlord in order to show that there are new tenants occupying the last known address of the ex’s boyfriend/girlfriend.

But even if your ex and the paramour maintain dual residences, you may still show cohabitation if you can demonstrate that the couple possesses the freedom to come and go between residences freely.  To illustrate this point, evidence that the ex and the paramour each have keys to the residence would show that the primary renter/owner does not have to be present for the other can enter into or remain on the premises.

There are many other examples of how to prove cohabitation, but these are the primary indicators to watch for to when building your case.

To Defeat the “Roommate” Defense – Evidence of a Conjugal Relationship

The second prong of the analysis for cohabitation is sexual contact between the cohabitants. Shared residence is not enough. You must also show they are engaging in sexual intercourse or similar sexual contact.

To defeat the “roommate” defense, your job is cut out for you. You cannot let the case stand on a he-said-she-said argument. You will almost certainly lose if you ask the court to take your word over another’s.  The burden to prove cohabitation/intimacy is on you, since you are the party wanting to terminate alimony. The law in Utah (as of April 2011) provides that alimony paid to a former spouse “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” Utah Code Ann. 30-3-5(10) (1995 et. seq.). There is no other way to put this than bluntly: you need to prove that there is sexual intercourse or similar sexual contact to refute the roommate defense.

Few are lucky enough (or unfortunate enough, depending on how you look at it) to have photographic or video evidence of sexual contact (obtained legally), or an admission of sexual contact, but there are other sources, that are persuasive: love letters, birthday cards, Facebook or other social media postings can all be helpful resources.  Almost everyone has a best friend with whom he/she shares these secrets. See if these friends will open up.  Not surprisingly, loyalty runs deep among friends and family members; especially if they know why you are asking and they want to protect your ex.  Or maybe they just want to stay out of it.

Traditionally, from a private investigator’s standpoint, we rummage through trash looking for evidence of the intimacy as part of the business.  Rummaging through trash cans for evidence is merely “a part of the business.” Often times, but not always, the cohabitants will discard paraphernalia of their sex-capades. I have found used condoms, and condom wrappers, instant photos, semen samples, hygiene products with blood or other discharge, etc. DNA collected from these items can also make the case.

Warning: Before you just jump into someone’s trash can, you must know the law concerning your jurisdiction.  This is important to know to avoid trespassing.  Generally, the only time one can lawfully retrieve another’s trash is once it hits the curbside. At that point, the trash becomes public property and the individual loses his/her right of privacy.

Other examples likely to produce evidence against the roommate defense can be documented by making records of the couple’s date nights, special occasions, holidays (especially Valentine’s Day and Christmas), each other’s birthdays, family functions, weekends, etc. Catching them displaying intimacy is challenging, but it can be done. You must observe them having a moment of passion, exchanging love glances, kissing, embracing, hugging, petting, etc. Take whatever they offer. Remember, couples typically become less affectionate in public settings over the course of their relationship. Time is of the essence.

Bear in mind, time is generally on your side if you are careful and have the patience. The longer the couple is living together, the more opportunities they provide the general public to build basic impressions about the depth of their relationship.  The easiest way I can explain your case, and how long the investigation should run, is to use a baker’s bread analogy. When first walking into a shop, you may see some bread and decide to try it. You don’t have to eat the entire loaf to decide whether it tastes good. You just need a slice. But the more slices you eat, the clearer the situation becomes. Eventually, you will have enough “loaves” of evidence to prove you have found a good bakery.  The slices of bread here represent the days of observation and what you have found. The bakers are the cohabitants. The more days of your observation (and the more sources of your information) about the cohabitants, the clearer the case becomes for the judge to conclude that the two are indeed cohabiting.

Now  you can either continue to hold your breath until those two get married or you can start working on your case today.

Jason K. Jensen

Licensed Private Investigator
(BCI Lic. # G101978, P101979)
Tel: (877) 648-8046
Fax: (888) 964-1924
jason@jenseninvestigations.com

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