Many statutes have been on the books for decades in the State of New York. Some of those statutes have been amended over time to bring them current with evolving social realities. Other statutes, however, have remained the same.
An example of a statute that has largely remained untouched for years on end is Section 248 of the New York Domestic Relations Law (DRL). In general terms, DRL §248 empowers New York courts to modify a final judgment of divorce or order made with respect to alimony—termed "maintenance" in New York—upon proof that the payee "is habitually living with another person and holding himself or herself out as the spouse of such other person, although not married to such other person."
The interplay between DRL §248 and current social realities was on display in the recent decision of the Supreme Court, Nassau County (Justice Stacy D. Bennett) in the matter of Ceppos v. Ceppos.
In Ceppos, the parties married in 1987. They executed a Stipulation of Settlement in 2019, and they were officially divorced in 2020. The Stipulation of Settlement provided that the wife's alimony payments "shall immediately terminate" upon the first to occur of several events, one of which was "Cohabitation by the [wife] pursuant to DRL §248."
In support of the ex-husband's motion to terminate his alimony payments, he argued that his ex-wife "habitually cohabitated" with her present fiancé "for years", and that before the Stipulation of Settlement was signed, the ex-wife "acknowledged residing with her then-boyfriend but she represented that her cohabitation with her boyfriend was temporary and that she would secure an alternate residence in the event she received maintenance from the ex-husband." The ex-husband claimed that his "reliance" on the ex-wife's "misrepresentation was pivotal to the negotiation process."
It comes as no surprise that the ex-wife argued that her ex-husband "knew that she was living with an unrelated male yet continued to make payments to her for a substantial period of time." Further, while the ex-wife conceded that she was engaged to be married, she "never held herself out as married to her fiancé."
Critically for purposes of this article, the Court's decision states as follows with respect to DRL §248:
One can make the argument that 'cohabitation as defined in DRL Section 248' permits the termination of maintenance upon the payee 'habitually living' with an unrelated male (although this Court does not agree) however, this Court finds that cohabitation pursuant to DRL Section 248 includes the presumption that the payee is residing with the unrelated individual as a marital unit (emphasis in original).
Therein lies the rationale for the Court's denial of the ex-husband's motion, as he did not present "sufficient evidence" that the ex-wife "held herself out as married." To eliminate the "holding herself out as married" component would, in the Court's opinion, "essentially reform the Stipulation so as to remove any reference to DRL Section 248."
As to the alleged representations made by the ex-wife about a "temporary" living situation with her then-boyfriend, the court's decision explains that the Stipulation of Settlement had "clear and unequivocal language throughout" the agreement "that there were not representations made to either party aside from what was set forth in the parties' Agreement and therefore any statements to the contrary by the ex-husband are wholly disregarded by this Court." Once again, boilerplate language in settlement agreements that resolve matrimonial disputes proves to be outcome determinative.
To support the Court's determination on the "holding herself out as married" component of DRL §248—which requires "some assertive" conduct on the part of the payee—the Court cites to two Court of Appeals cases, Bliss v. Bliss, 66 N.Y.2d 382 (1985) and Northrup v. Northrup, 43 N.Y.2d 566 (1978).
Bliss identifies various examples of what have been held to constitute a finding of "holding out": (1) "where a woman is listed in a telephone directory or on the couple's joint checking account using the man's surname"; or (2) "where the ex-wife shared a cooperative apartment with her paramour and the application of the apartment had been signed by them as husband and wife." The bottom line: "cohabitation alone is insufficient as a matter of law," and the DRL Section 248 song remains the same in view of the "unsuccessful attempts following the Northrup decision to amend" its language.
That brings us to Northrup, which explains that DRL §248 involves a "two-part test", and while the "holding out" requirement does not mandate a statement such as "I am his wife … That individuals may conform to the life style of a married couple is not enough." Thus, that the ex-wife in Northrup lived with a man "not her husband, shared the same bedroom with him, cooked meals, did his wash, permitted him to use her car, and shared household expenses with him" was insufficient as a matter of law to satisfy the two requirements of DRL §248.
And now, we turn to the dissent of Justice Sol Wachtler in Northrup, which states that the majority opinion of the Court of Appeals employed a "literal interpretation of DRL §248 which does not take into account current social realities." Prior to 1938, the dissent explains that what is now DRL §248 "required the former wife to remarry before the court could alter the alimony decree." That was "literally interpreted to require a ceremonial remarriage"—an interpretation that the dissent argued was rejected when the statute was amended in 1938 to allow the courts to intervene when "the former wife" is "habitually living with another man and holding herself out as his wife."
To the mind of Wachtler, "the Legislature intended the courts to consider the extent of the wife's new relationship without respect to formalities. They intended the courts to recognize current social realities in applying the statute. Above all they intended to close the loophole and not create a new means for avoidance."
Additionally, the majority "have read the statute in such a way as to virtually render [the 1938 amendment] a dead letter by requiring a degree of formality which the majority must recognize is unrealistic in terms of current social standards and practices."
Where does this leave us? People across various professions – legal and non-legal – suggested to me that the following might be proof of some "assertive act":
• The couple wears rings;
• One person refers to the other as his/her "spouse" on social media;
• When a Federal Express package arrives at a personal residence, one person says "my wife is in the shower, I can sign for her";
• One person has access to the other person's medical records or otherwise is able to render medical decisions on his/her behalf; and/or
• One person has consulted with matrimonial counsel for divorce purposes (have a sense of humor).
In the end, assume that an ex-husband is paying alimony to his ex-wife, who habitually resides with another man following a judgment of divorce, but has not held herself out as married. One can argue that the alimony payments are, in part, being used to support a third-party romantic partner of the ex-wife—or at least, to pay, in part, his housing expenses. Perhaps that is the "grotesque result" referred to by Wachtler in his dissent in Northrup.
Whatever your position is, DRL §248 remains unchanged and the Ceppos decision reminds us what it means to identify that statute as an alimony termination event in a divorce settlement agreement. If you mean to include something else in a divorce settlement agreement, make sure to be as specific as possible.
"Reconciling the Law of ‘Cohabitation’ with Social Realities," by Alan R. Feigenbaum, was published in the New York Law Journal on October 10, 2024.
Reprinted with permission from the October 10, 2024, edition of the New York Law Journal © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
