Live-In Lover Statute
Georgia allows for the award of alimony in divorce actions on a temporary or permanent basis, depending on the evidence. And where permanent alimony is awarded, the law allows for modification of alimony where there has been a change in the income and financial status of either former spouse. However, Georgia’s “Live-In Lover" statute provides a method for reducing or terminating alimony without the necessity of proving a change in income and financial status, but instead, is based on the relationship with a "live-in lover."
O.C.G.A. § 19-6-19(b) states, "Subsequent to a final judgment of divorce awarding periodic payment of alimony for the support of a spouse, the voluntary cohabitation of such former spouse with a third party in a meretricious relationship shall also be grounds to modify provisions made for periodic payments of permanent alimony for the support of the former spouse. As used in this subsection, the word "cohabitation" means dwelling together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person. In the event the petitioner does not prevail in the petition for modification on the ground set forth in this subsection, the petitioner shall be liable for reasonable attorney's fees incurred by the respondent for the defense of the action."
Accordingly, in analyzing the "live-in lover statute", let's assume that John Doe and Jane Doe alimony were married. Upon the granting of the Final Judgment and Decree of Divorce, the court ordered John Doe to pay to Jane Doe permanent alimony in the amount of $5,000.00 per month.
John Doe then discovers that Jane Doe's new boyfriend has moved in with her. The two of them are indeed a romantic couple. John Doe now wants to terminate alimony payments to Jane Doe. Here is what John Doe must prove:
First, John Doe will need to prove that Jane Doe and her boyfriend are in an "open and continuous cohabitation". As stated in the statute, "open and continuous cohabitation" means dwelling together continuously (i.e., not spending the night from time to time). (It should be noted that this statute applies regardless of the sex of the live-in lover).
Second, John Doe must prove that the two are in a meretricious relationship (i.e., the two are engaged in a sexual relationship and they are not married to each other), or
Third, John Doe must prove that the two are sharing expenses of cohabitation.
The Supreme Court in Hathcock v. Hathcock, 249 Ga. 74, 287 S.E.2d 19 (1982) stated, "We previously have determined that disallowing alimony modification pursuant to a 1979 amendment to the live-in lover statute "would require those spouses to subsidize their former husbands and wives and their lovers who are cohabiting together." Morris v. Morris, 244 Ga. 120, 123, 259 S.E.2d 65 (1979). We later referred to the relationship contemplated by the General Assembly as one "similar in nature to marriage" or "akin to marriage." Sims v. Sims, 245 Ga. 680, 682, 266 S.E.2d 493 (1980). In both Morris and Sims, we concluded that the cohabiting former spouse does not have a "vested right to continue to receive full alimony from a former spouse while contemporaneously sharing living quarters (and thus expenses) with another (albeit unmarried) mate." 245 Ga. at 683, 266 S.E.2d 493."
Accordingly, the "live-in lover" statute applies upon proof of sexual intercourse between the former spouse and the third party although no proof is offered tending to establish that the former spouse received from, gave to, or shared with the third party expenses of their cohabitation. Conversely, the statute also applies upon proof that the former spouse received from, gave to, or shared with the third party expenses of their cohabitation although no proof is offered tending to establish sexual intercourse between the former spouse and the third party.
All elements of the statute must be proven: (1) open and continuous cohabitation, and either (2) sexual intercourse between the former spouse and the live-in lover; or (3) proof of shared living expenses.
In the case of Daniels v. Daniels, 258 Ga. 791, 374 S.E.2d 735 (1989), the evidence showed that the former spouse and the live-in lover had a child together. However, the evidence was only sufficient to prove periodic sexual encounters. Thus, evidence was not sufficient to prove that the parties dwelled together "continuously or openly". Accordingly, the relationship failed to meet the requirement for modification of permanent alimony under O.C.G.A. § 19-6-19(b).
The downside of bringing an action under the "live-in lover" statute would be as follows: If the moving party fails to prove his/her case, the court is required to award attorneys fees to the respondent. O.C.G.A. § 19-6-19(b) states, "In the event the petitioner does not prevail in the petition for modification on the ground set forth in this subsection, the petitioner shall be liable for reasonable attorney's fees incurred by the respondent for the defense of the action." You will note that the language states "SHALL BE LIABLE", meaning, this requirement is not discretionary for the court.
Hence, prior to bringing an action under Georgia's "live-in lover statute", the petitioner must have the sufficient evidence necessary to prove the case prior to filing.