When Living Together Matters in Property Division

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While Massachusetts does not recognize “common law” marriage, living together can have an effect on each party’s legal rights and obligations should they later legally marry and then divorce.

When determining alimony and property division in a divorce case, one of the many factors a judge is required to consider is the length of the marriage (G.L. c. 208 §34). Typically the length of the marriage is the time from the date of marriage to the date of service of a complaint for divorce, (G.L. c. 208 §48), but a judge can include the time the couple was living together prior to their marriage under certain circumstances.

A recent Supreme Judicial Court case that addressed this issue is Duff-Kareores v. Kareores, 474 Mass. 528 (2016), where the parties were married for 9 years, divorced for 4 years, then lived together for 5 years, remarried for 6 months, and then divorced again. To sum up, they lived together for a total of 5 years and were married for a total of 9 ½ years. The initial divorce was the result of a settlement agreement, which required the husband, who was the primary wage earner, to pay alimony in the amount of $7,600.00 per month. When the couple started living together again after the first divorce, they conducted themselves exactly as they had during the first marriage. The husband was the primary wage earner and the wife took care of the home and the children.

At the trial on the second divorce, the wife wanted the court to include the longest period of time when determining the amount of alimony and dividing the main asset in the case, which was the husband’s retirement account. So she argued that the court should include the period of the first marriage, the time the couple was living together, and the time of the second marriage, which was a total of about 14 years. The husband, in contrast, wanted the shortest period of time possible, and wanted to include only the 6-month period of the second marriage. That’s quite a difference!

The court agreed with the wife, with only a slight change by the appellate court (the trial judge included the time the parties were divorced and living separately for a total of 18 years, which was viewed is improper on appeal). The appellate court cited §48 which provides a trial court with discretion to “increase the length of the marriage if there is evidence that the parties’ economic marital partnership began during their cohabitation period prior to the marriage.” An “economic marital partnership” is not defined in the statute, but the court referenced a related provision addressing the duration of general term alimony which can terminate when the receiving spouse shares a “common household” with another person. (G.L. c. 208 §49). A “common household” can be determined by the following factors:

  • oral or written statements or representations made to third parties regarding the relationship of the persons;
  • the economic interdependence of the couple or economic dependence of [one] person on the other;
  • the persons engaging in conduct and collaborative roles in furtherance of their life together;
  • the benefit in the life of either or both of the persons from their relationship;
  • the community reputation of the persons as a couple; or
  • other relevant and material factors.”

The Supreme Judicial Court took these factors and plugged in the facts of the husband and wife, and found that during the 14 years they were living together they had formed a common household and were thus in an economic partnership even when they were not married. So if you are in a marriage that was preceded by a period of cohabitation where you are economically codependent, then it its possible that the court may include that period of cohabitation when making a determination of alimony or dividing the property acquired during or before the marriage. It is important to speak with an attorney to discuss the specific facts or your case if you are believe your case might be similar to the facts in the Duff-Kareores case.

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