Divorce Lawyers New York - Recent Family Law Decisons (16)
RECENT FAMILY LAW DECISIONS (16)
Continuing Basis
Evidence Insufficient
In determining whether an ex-wife was engaged in a resident, continuing, conjugal relationship with a third part, thereby providing grounds to terminate her maintenance, a trial court should have found the “nature of activities” they engaged in to favor only slightly a finding of a conjugal relationship because the evidence showed only limited domesticity; she did his laundry only some times and he would merely help out with the chores, such as taking out trash and cutting the lawn, on occasion.
Trial court miscalculated the weight to accord the “amount-of-time” together factor, which it used when considering whether a new relationship was grounds to terminate alimony. Because the ex-wife showed the frequency of her boyfriend’s overnight visits was due in part to her ex-husband’s harassing behavior, the trial court should have accorded relatively little weight to the “amount-of-time” factor in determining the existence of a conjugal and cohabiting relationship.
Four month relationship between ex-wife and boyfriend was too brief to support a trial court’s finding of conjugal cohabitation, which it used as a basis to terminate alimony; the length of the relationship is a proxy to help determine whether the new relationship is in fact a substitute for the marital relationship.
The trial court’s decision not to terminate maintenance was not against the manifest weight of the evidence where trial court considered the short period of cohabitation, the continuing need for support, the lack of commingling of funds, the petitioner’s payment of all her bills with the exception of rent and utilities, and the termination of the relationship, and ruled that there was no de facto relationship.
The trial court’s finding that the relationship implied more of a dating relationship and not a de facto marriage was not against the manifest weight of the evidence, where the former wife and her friend dated other people as well as each other, took trips separately was well as together, maintained separate residences, and did not commingle assets.
The evidence fell short of establishing a husband-wife relationship where both the wife and her boyfriend dated other people, her boyfriend considered her arrangement as rooming with a friend on a temporary basis until she rejoined her children, she moved in, in part, to provide more room for visitation with her children, she retained her name, received mail at more than one address and had identification cards listing several addresses, and additionally, there was no evidence that the two commingled their funds, as might be expected in a husband-wife relationship.
Factors
Shown
In hearing to determine whether to terminate an ex-wife’s alimony, a trial court properly interpreted evidence that ex-wife and her boyfriend spent all of the holidays together as a factor in favor of a finding of a conjugal relationship.
The trial court’s finding that petitioner cohabitated with another man on a “resident, continuing conjugal basis: was not against the manifest weight of the evidence where the record revealed they shared meals, bank accounts, household chores, and credit accounts, as well as exchanged holiday and birthday gifts and the two also took vacations together and maintained a sexual relationship.
