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Texas Court Says Divorced Spouse Can Keep Receiving Alimony Despite Long-Term Cohabitation

When does "living together" constitute common law marriage resulting in an end to alimony payments?

When a divorced spouse who receives alimony remarries, the alimony payments are expected to come to an end. Indeed, for the ex- paying the alimony, the remarriage of a former spouse may be a fond hope.

But what if the spouse does not formally remarry and simply cohabits with another person? Is this an "informal marriage" or "common law marriage" that ends the obligation to make alimony payments? In a recent case in Dallas, Texas, the answer was "no."

A Sharply Divided Court Allows Alimony to Continue

The case involved a couple who had been divorced since 1997. Initially, Yan Assoun was ordered to pay his ex-wife Anais $132,000 per year, unless she married again. This amount was later increased to $380,000 per year. When he learned that his ex-wife had been living with another man and that Yan's children had also moved in, Yan asked a court to issue a declaratory judgment that his ex-wife was in a "common law" marriage and that his alimony obligations should be terminated.

At trial, his ex-wife won a summary judgment. The court relied on affidavits in which both she and her lover swore they were never married. A divided Dallas Court of Appeals affirmed.

How to Prove the Existence of Informal or Common Law Marriage

In Texas, the Family Code provides that the existence of an informal may be established by showing that a couple:

1) agreed to be married;

2) after agreeing, lived together in Texas as husband and wife; and

3) represented themselves as married to others.

Anais and her lover admitted that parts two and three of this formulation were true. But they said that, because they had never agreed to be married, part one was not satisfied and no informal marriage existed. The Court of Appeals agreed, ordering alimony payments to continue.

The Role of Circumstantial Evidence

The dissent in the case pointed to substantial circumstantial evidence that the couple was informally married -- enough, the dissent thought, to warrant a trial on the facts. Anais used her new lover's last name, wore what appeared to be a wedding ring, and referred to his family members in ways suggestive of marriage.

The majority conceded that marriage could be proven by circumstantial evidence, but it placed great weight on affidavits from the couple, in which they attested that they had not agreed to be married.

The case raises serious questions for both sides of an alimony dispute, and different facts could lead to a different outcome. If you are paying or receiving alimony and are interested in the impact of a common law marriage on your situation, it would be advisable to consult an expert family law or matrimonial attorney.