THE PRESUMPTION OF MUTUAL SUPPORT

October 29, 2012 § 1 Comment

The COA decision in Pritchard v. Pritchard, handed down October 23, 2012, is the most recent alimony termination case in which the courts have addressed the rule that cohabitation creates a presumption of mutual support, shifting the burden to the recipient spouse to produce evidence that there is no mutual support within the de facto marriage.

You need to read Pritchard yourself to appreciate the scope of mutual support that was enough to trigger the presumption. I won’t rehash them here. But here are a few nuggets gleaned from Judge Griffis’s decision (which quotes Professor Bell’s treatise):

  • Recipient-wife and another man had a sexual relationship, and she provided him a truck and lodging rent-free. In return, he built a deck, installed a floor, moved furniture, did yard work, and carried out the garbage. The trial court should have considered this mutual support. Scharwath v. Scharwath, 702 So.2d 1210 (Miss.App. 1997).
  • A de facto marriage can terminate alimony, as where a couple was engaged without immediate plans to marry, solely to prolong the receipt of alimony. Martin v. Martin, 751 So.2d 1132, 1136 (Miss. App. 1999). 
  • A similar result in Pope v. Pope, 803 So.2d 499, 504 (Miss.App. 2002).
  • Where the recipient spouse pays for her live-in’s psychological evaluation, car tag, attorney’s fees, clothes, cell phone, job materials, and motel room, and the live-in provides household services and chores such as maintenance and repair of the home, the presumption is triggered. Burrus v. Burrus, 926 So.2d 618, 621 (Miss.App. 2006).

In Pritchard, the COA found that the chancellor applied the correct legal standard, but that there was not sufficient evidence to support the chancellor’s decision that the presumption was overcome by proof of non-mutual support. The COA reversed and rendered.

CAVEAT: a brief period of cohabitation may not trigger the presumption. See, Tillman v. Tillman, 809 So.2d 767, 770 (Miss.App. 2002).

These cases are fact-intensive. Before you go thrashing off into this swamp, you would do well to study what Professor Bell has to say, and read as many cases on point that you can find. There has to be either cohabitation for more than a short period coupled with mutual support, or there must be a de facto marriage. The latter is a more elusive concept. You will likely need a substantial base of discovery or PI work to do the job. 

 

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