Defining “Cohabitation” in Your Separation Agreement

Back in October, the New York Law Update Blogposted an interesting summary of the State’s highest court’s construction of a separation agreement in what sounds like a very bitter divorce.

In the case, the husband and wife signed a settlement agreement wherein he had to support her until “the occurrence of any of four ‘termination events.’  These were: (1) the wife’s remarriage; (2) the wife’s death; (3) the husband’s death; or (4)’[t]he cohabitation of the Wife with an unrelated adult for a period of sixty (60) substantially consecutive days.'”

The man had surveillance done on his wife and found that she was basically living with another man for “substantially” 60 days straight. He cut off her payments. She claimed that he couldn’t because she didn’t “cohabit” with the man. She defined “cohabiting” as “having intimate relations.” she claimed that for various reasons, she wasn’t having relations with the man. The husband said that cohabiting in the separation agreement meant “living together” and that he’d shown that she did live with the man for the 60 days.

The trial court and the appellate division sided with the wife that cohabiting meant “intimate relations.” But NY’s highest court, the Court of Appeals in  Graev v Graev, foundthat the meaning of the term was in fact ambiguous and remanded the case back to the trial court to find out what the parties meant when they put “cohabit” in the separation agreement.

I understand what the Court of Appeals said better than I understand the two lower courts. When you read the context, i.e. that they had to “cohabit” for substantially 60 days straight, it just doesn’t sound like the agreement is saying she literally has to have intimate relations with some guy (almost) every day for 60 days!  Barring some kind of big brother surveillance with bugs and secret cameras inside her house, it seems absurd to me to suggest that this is what the separation agreement required that he prove in order to cut off her support payments! 

When I initially read the wording of their separation agreement, the context seemed to indicate that “living together” and “sharing a residence” was the termination trigger, not actual proof of intimate relations.

Bottom line, as Thomas Swartz pointed out, you need a very good attorneyto draft your separation agreement very very carefully and not leave terms, within that agreement, ambiguous.