Does past cohabitation terminate alimony under Utah law? Scott v. Scott Explained

The Utah Supreme Court in Scott v. Scott addressed a critical question about alimony termination: whether proof of past cohabitation is sufficient to terminate alimony, or whether the cohabitation must be ongoing at the time of filing. The court’s decision provides important clarity for family law practitioners handling alimony modification cases.

Background and Facts

Jillian and Bradley Scott divorced in 2006, with Jillian receiving $6,000 monthly in alimony for 25 years. In October 2011, Bradley moved to terminate alimony, claiming Jillian had cohabited with her boyfriend J.O. from February 2011. However, Jillian and J.O. had broken up months before Bradley filed his motion. The district court found that cohabitation had occurred and terminated Bradley’s alimony obligation, ordering Jillian to return payments from December 2010 forward.

Key Legal Issues

The central issue was interpreting Utah Code section 30-3-5(10), which provides that alimony “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” Jillian argued that the present tense “is cohabitating” requires ongoing cohabitation at the time of filing, while Bradley contended that proof of past cohabitation was sufficient.

Court’s Analysis and Holding

The Utah Supreme Court conducted a plain language analysis of the statute, focusing on the present tense verb “is.” The court emphasized that “is cohabiting” creates a continuous tense indicating ongoing action. The court rejected the court of appeals’ interpretation that would treat “is” as meaning “was” or “had been,” noting that the legislature could have used different language if it intended past cohabitation to suffice. The court distinguished this provision from the automatic termination for remarriage, recognizing that the legislature chose different language for different circumstances.

Practice Implications

This decision significantly impacts alimony termination practice in Utah. Practitioners must ensure that alleged cohabitation is ongoing at the time of filing the motion to terminate. The court clarified that the relevant date is the filing date, not the hearing or trial date. Additionally, the court noted that defending a motion to terminate alimony does not entitle the defending spouse to attorney fees under Utah Code section 30-3-3, which only covers actions to establish or enforce alimony.