Cohabitation Defined "Again"

A recent Kansas Supreme Court decision, In re Marriage of Kuzanek defines once again the question of cohabitation as it applies to the payment of maintenance to an ex-spouse.  Kuzanek provides that "in the abence of an explicit alternative definition in a settlement agreement or arbitration or court document in a divorce case, Kansas has defined 'cohabitation' to mean living together as husband and wife and mutual assumption of those marital rights, duties, and obligations that are usually manifested by married people, including but no necessarily dependent on sexual relations."

The paying ex-spouse moved to terminate spousal maintenance based on his ex-spouse's alleged cohabitation with her boyfriend.  Her boyfriend paid rent to live in the basement of her house.  The district judge held that the paying ex-spouse had failed to meet his burden of proving cohabitation.  He applied the above definition of cohabitation, which was established in a 1987 Court of Appeals decision. 

This seems to be an issue that comes to light quite often, even in my own practice. 

Please post your comments!!!!!

Comments

[Dave Kuzanek]

I don't think it was re-defined at all ... that's what we were looking for ... the Supreme Court simply decided that the Appellate Court (which had reversed the District Court decision - thereby providing a "new" definition) didn't have the latitude to re-evaluate the evidence provided in the District Court ... I think Kansas is over due for a re-definition of co-habitation (based on the appellate court's opinion), but it's going to take a District Court judge with more guts than the one I was in front of ...

[Danny Dillinger]

My x-wife was recently awarded $500 per month in maintenance for the next seven years. My children tell me that she has her boyfriend stay the night 3-4 times a week. On the weekends that they stay with her they spend the night at her boyfriends house. I have the children one night a week and every other weekend so I'm sure the children could not account for one night a week and every other weekend. I have been ordered by the court to pay her over half of my net income. The primary custody is reversed for two months during the summer with no abatement of support. The child support I do not have a problem with, but the maintenance is financially devistating. I will also have extreme financial difficulties keeping the children over the summer without support abatement. Are they getting arround the cohabitation issue by maintaining two residences.