What constitutes cohabitation for alimony termination purposes in Utah? Scott v. Scott Explained

In Scott v. Scott, the Utah Court of Appeals addressed the critical question of what constitutes cohabitation sufficient to terminate alimony under Utah Code section 30-3-5(10). This decision provides important guidance for practitioners handling alimony modification cases involving cohabitation claims.

Background and Facts

Following their 2006 divorce, Bradley Scott agreed to pay Jillian Scott $6,000 monthly in alimony for approximately 27 years, subject to termination upon her remarriage or cohabitation. Jillian began dating J.O. in October 2008, maintaining separate Salt Lake City residences while frequently traveling together to his vacation homes. In 2010, the couple became engaged and purchased a California home together, moving there in February 2011. Their relationship ended abruptly in April 2011 after only six weeks of cohabitation.

Key Legal Issues

The primary issue was whether Jillian and J.O. had established cohabitation under Utah law, specifically: (1) whether they established a common residency, and (2) when such cohabitation began. The court also addressed whether the statutory language requiring that the former spouse “is cohabitating” mandates ongoing cohabitation at the time of the termination proceeding.

Court’s Analysis and Holding

The court reaffirmed that cohabitation requires both a relatively permanent sexual relationship and establishment of a common residency. Common residency has three elements: (1) establishing a common abode, (2) that both parties consider their principal domicile, (3) for more than a temporary or brief period. The court distinguished between the couple’s extensive travel together (which retained a temporary quality) and their deliberate move into the California home as joint purchasers with the intent to live there long-term.

Regarding the statutory interpretation issue, the court rejected the argument that cohabitation must be ongoing at the time of the termination proceeding. The court concluded that requiring present cohabitation could create perverse incentives and undermine the statute’s purpose.

Practice Implications

This decision clarifies that extensive travel and time spent together, even with shared expenses and stored personal items, does not necessarily constitute cohabitation without evidence of a truly shared principal domicile. Practitioners should focus on evidence of intent to establish a permanent common residence rather than temporary or convenience-based living arrangements. The ruling also confirms that alimony termination is permanent once cohabitation is established, regardless of whether the cohabitation relationship subsequently ends.