As every seasoned matrimonial practitioner is aware, the issue of termination of maintenance is a hot button item when negotiating a separation agreement or settlement stipulation. No spouse wants to support a former spouse and the spouse’s long-time paramour. Even after all other issues as to custody, equitable distribution, child support and counsel fees are resolved, the “cohabitation” monster rears its ugly head. Domestic Relations Law §248 (modification of judgment or order in action for divorce or annulment, provides in part) provides as follows:
The Court in its discretion upon application of the payor on notice, upon proof that the payee is habitually living with another person and holding himself or herself out as the spouse of such other person, although not married to such other person, may modify such final judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders or of both, directing payment of money for the support of such payee.
Historically, the literal requirements of DRL §248 have been extraordinarily difficult to meet, in order to modify a Judgment of Divorce. As a result, counsel for the paying spouse customarily provides in an agreement that maintenance terminates upon the earliest of a certain term; upon the death of the former spouse; death of the payor spouse or various forms of “cohabitation”, as specifically defined in the Agreement or Stipulation.
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