Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, November 8, 2005

Case Law Development: Cohabitation and Remarriage as Changed Circumstances Justifying Modification of Alimony

The Vermont supreme Court considered three consolidated cases in which the central issue was, "when does cohabitation or remarriage constitute a real, substantial, and unanticipated change of circumstances justifying a modification of spousal support?" 

Unlike the majority of states, Vermont does not presume that maintenance will be reduced or terminated on remarriage of the recipient spouse. Rather, remarriage is simply one circumstance -- like cohabitation -- that can constitute a "real, substantial, and unanticipated change of circumstances."

Vermont had not previously addressed the effect of cohabitation as a changed circumstance in maintenance actions.  The court concluded that cohabitation should be treated like remarriage in that it can constitute a change in circumstances if the obligor spouse can prove that it was unanticipated, and effects a real and substantial change in the financial circumstances of the obligee spouse.  The court cautioned that to constitute changed circumstances, "cohabitation must approach the permanency of marriage."   

Applying these standards to the cases before it, the court upheld the modifications in some and not in others, depending on the evidence of financial contribution from the new partner and its effect on the recipient spouse's financial condition.  The court held in one case, in which wife's cohabitant partner was not actually contributing to household expenses, that this did not constituted changed circumstances.  The court suggested that even cohabitation plus contribution would be insufficient unless the movant showed that this resulted in a actual improvement in the finances of the recipient spouse.  One judge dissented from this holding and objected to the dicta, finding that the court's rule was inconsistent with the approach used by the majority of states and unduly restricted the trial court's discretion.

Miller v. Miller, 2005 VT 122, 2005 Vt. LEXIS 303 (November 4, 2005)
Opinion on the web at (last visited November 7. 2005 bgf)

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