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Advances in Technology and Termination of Alimony in Utah

Under Utah Code Ann. § 30–3–5(10) unless otherwise provided in the divorce decree, alimony “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” See, Levin v. Carlton-Levin, 2014 UT App 3, ¶ 10, 318 P.3d 1177, 1179-80.

What is cohabitation? How do you prove that a couple is cohabitating? What type of evidence can be used to prove that cohabitation exists?

First, what does cohabitation mean under Utah Code §30-3-5(10)? Cohabitation occurs when a couple is living together, and carrying a marriage like relationship. Courts have turned to look at a number of factors in determining whether cohabitation exists.

  1. Are they living together (this does not mean what most people think, so read on)?
  2. Is there sexual intercourse in the relationship?
  3. Do they share in the household expenses?
  4. Do they share in the household decisions?
  5. Do they share a living space?
  6. Does the relationship resemble that of a married couple?
  7. How long have they been together?

Cohabitation can be challenging to prove, and expensive. Oftentimes people have turned to private investigators to follow their former spouses and/or use secret surveillance techniques in the hope of trying to catch their former spouses in the act. Utah Courts have stated that a couple living together, even if they are physically intimate, does notautomatically mean there is cohabitation for purposes of the statute. See Myers v. Myers, ¶ 39 266 P.3d 806  (2011 Utah Supreme Court). The nature, quality, and volume of the evidence is crucial in determining whether a couple is cohabitating.

Improvements in technology now make it easier than ever to gather evidence to prove cohabitation. In 2014, the Utah Court of Appeals decided that an ex-wife (to whom the ex-husband had been paying $15,000 per month in alimony) was cohabitating based on evidence gathered through a GPS tracking system and cell phone data records (Levin v. Carlton-Levin, 318 P.3d 1177, (Utah Court of Appeals 2014). The private investigator used the raw data from the GPS tracking system to determine when the vehicle that was owned by the boyfriend went to and from the residence of the former spouse. Cell phone records were used to determine the location of the parties at the time the calls they were placing were originated. As a result the court determined that the former spouse and her boyfriend were cohabitating and terminated alimony. In addition to using GPS tracking systems, and cell phone tower data, courts have looked at bank statements, video surveillance, and other types of technology in determining whether cohabitation existed.

Still, Utah’s Supreme Court has never “delineate[d] a list of required elements of cohabitation because there is no single prototype of marriage that all married couples conform to.” (Myers v. Myers, ¶ 24, 266 P.3d 806). What Utah courts have done “is identify general hallmarks of marriage” (and thus cohabitation). “Those hallmarks include a shared residence, an intimate relationship, and a common household” involving shared expenses, shared decisions, shared space, and shared meals. Id. ¶¶ 23–24. There are a number of other possible factors “that might more completely inform the question whether a relationship resembles that of a married couple,” such as “the length and continuity of the relationship, the amount of time the couple spends together, the nature of the activities the couple engages in, and whether the couple spends vacations and holidays together.” Id. ¶ 24 n. 3. FN4

So keep in mind as you are going through the process of divorce in Utah and moving on with your life that technology can help keep both parties a little more honest, because it will be harder to hide if someone is lying, and easier to prove.

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