On February 1, 2018, the Court of Special Appeals issued its opinion in Rose v. Rose, a case involving:

• Alimony termination due to the ex-spouse's alleged cohabitation in a marriage like relationship pursuant to Gordon v. Gordon;
• Reimbursement of children's expenses; and,
• Modification of child support when parties agree to annual recalculation of child support and whether support should be based upon the children's actual overnights with a parent or the number of overnights court ordered.

Alimony Termination & Cohabitation

Alimony terminates upon the death of either party, remarriage of the alimony recipient, on a date selected by the parties (if time limited), or upon any other circumstance that the parties agree upon in their settlement.

In Rose v. Rose, the parties agreed that alimony would terminate upon the recipient's (there, the ex-wife) "cohabitation (as defined by Gordon v. Gordon, 675 A.2d 540 (1996)".

Gordon v. Gordon discussed and defines "cohabitation" as: "We conclude that the term “cohabitation” implies more than merely a common residence or a sexual relationship. We believe the ordinary definition of “cohabitation,” describing a relationship of living together “as man and wife,” connotes mutual assumption of the duties and obligations associated with marriage. To guide trial courts in applying this definition, we have formulated a list of factors to consider in determining whether a relationship constitutes cohabitation. We emphasize, however, that the list is non-exhaustive, and that no one factor serves as an absolute prerequisite for cohabitation. In interpreting “cohabitation,” courts may consider indicia such as: 1. establishment of a common residence; 2. long-term intimate or romantic involvement; 3. shared assets or common bank accounts; 4. joint contribution to household expenses; and 5. recognition of the relationship by the community."

The Court of Special Appeals agreed with the trial court that, while the first 2 factors were established, that the remaining five factors were not. Specifically:

• That although the ex-wife and her boyfriend shared a house together and had borrowed, lent, and repaid money between one another, that they did not have shared assets or bank accounts;
  • Note: The opinion is not entirely clear about who owned the house, but refers to it as a "shared" asset, implying shared ownership.
• That the boyfriend made no monetary contributions to the household, as his contributions were limited to non-monetary contributions of dog walking and taking the children who resided in the home (ex-wife's daughter and boyfriend's daughter) to school; and,
• That there was no evidence that the ex-wife and boyfriend held themselves out to the community as a married couple.

In discussing the fifth factor, the Court of Special Appeals stated: "As to Gordon’s fifth factor—recognition of the relationship by the community— is correct that the Court of Appeals stated “we do not interpret ‘cohabitation’ to require the couple to hold themselves out as spouses.” 342 Md. at 309. Citing Sitarek v. Sitarek, 179 A.D.2d 1064, 1065 (N.Y. App. Div. 1993), the Gordon Court contrasted New York’s concept of “cohabitation,” which requires proof of the parties holding themselves out as a married couple. 342 Md. at 309.

Instead, Gordon merely relegates “recognition of the relationship by the community” as one factor in the “cohabitation” analysis. In addition, the Court provided further guidance concerning the meaning of that fifth factor:

"We include the fifth factor, recognition of the relationship by the community, however, to address situations where parties have celebrated an unofficial marriage ceremony, wear wedding rings, use each others’ names, or otherwise indicate to the community that they are married... The trial court’s determination is consistent with Gordon’s observation that “‘cohabitation’ implies more than merely a common residence or a sexual relationship” and that it “connotes mutual assumption of the duties and obligations associated with marriage.” Id. at 308... We reiterate that Gordon merely enumerates a non-exhaustive list of factors intended to guide trial courts when called upon to determine whether “cohabitation” has been established."

The Rose opinion begs the question of whether it is possible to prove cohabitation for purposes of terminating alimony without the alimony recipient's

• participation in an unofficial marriage ceremony,
• wearing a wedding ring,
• using the cohabitant's name, or
• otherwise holding him-/herself out as a married person?

On the one hand, Rose states that the Gordon factors are a "non-exhaustive list of factors intended to guide trial courts" and rejects a requirement that the alimony recipient and cohabitant as holding themselves out as a "married couple" (as is required in New York). On the other hand, Rose adopts the trial court's language and finding that there was no "de facto marriage".

What is a "de facto marriage"? Is it anything other than ceremonies, rings, and names? Rose v. Rose tells us that it's more than living together (and possibly owning a home together), borrowing and lending money, blending a family (as both cohabitants' children lived with them), walking the dog, and taking the children to school.

• Had the ex-wife and boyfriend shared accounts (such as bank accounts) and shared household expenses, would this have appeared more "de facto marriage" like?
• Would it have mattered if there were more evidence about incidental and indirect monetary contributions, like buying groceries, paying for meals out, and utility payments?
• What if there were more extensive evidence of non-monetary contributions, such as grocery shopping, cleaning, taking out the trash, yard work, and home maintenance?
• What if neighbors and friends testified about their understanding of the relationship?

In sum and after Rose v. Rose, Gordon's cohabitation factors seem more interrelated and overlapping than before, especially considering the opinion's rejection of a requirement that the cohabitants hold themselves out as spouses but adopts the trial court's holding for failure to prove a "de facto marriage".

Rose v. Rose applies when spouses have agreed that alimony will terminate upon the recipient's cohabitation as defined in Gordon v. Gordon. With cohabitation on the rise and marriage decreasing, will we see more cohabitation restrictions in alimony agreements and how will we see them change?

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on LinkedIn, Facebook, Instagram, Twitter, LindsayParvis.com, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.