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Legal/Professional Advice Requested [Archive] - StangBangerz Forums

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01cobra
01-13-2009, 11:54 AM
My questions to anyone with knowledge or experience in proving cohabitation is. 1. What was your situation? 2. What process did you follow? 3. Were you successful? 4. Was there a so called smoking gun in the case and what was it?

Quick background in my situation.. I live in Ohio all legal proceedings have been and will be held in Warren county. 15 year marriage with one minor child. Divorce decree finalized 2 years ago. I pay alimony but I do not pay child support. I have physical custody of minor child and always have. There is clause in divorce decree to terminate spousal support if exwife cohabitates.

I have studied this topic on the net and it is much more complex than proving BF stays with exwife. I dont want to divulge to much info here as proceedings are currently pending. But my case (I believe) is a little different. Most folks are hung up on proving he stays with her or visa versa. In this case exwife has stated in court where she lives and does not deny her address. Simple searches of county auditor website reveal the house is his. It also states same address as "Tax mailing address". Simple whitepages search in his name also confirms this address. Im sure in court they may say he does not live there and rents to her or land contract etc. etc. However I do have at least one witness that will testify on my behalf that his vehicles are there (she is driving one of them) he cuts grass whatever... My current attorney has sent her a set of questions (interrogotories??) she must answer truthfully. We still have not received those (been 3 months now) so again I dont want to reveal to much here just in case. I suspect she is struggling to get her documentation in order and may be fabricating as necessary. I have other items but I think they are all circumstantial. I am counting on the answers to her questions to corroborate my evidence as well as acquire additional evidence. Is there anything else you think I could do to bolster my case? Im not so worried about proving they live at same physical address its the other stuff Im having difficulty obtaining evidence to prove.
FYI the following is the best definition for cohabitation I have found.....

Cleveland v. Crawford (Sept. 28, 1989), Cuyahoga App. Nos. 55899 and 55900, unreported, 1989 WL 113070 (Living together for one month, being "intimate" on more than one occasion, sharing closet space, and the woman cooking and doing laundry for the man are enough to establish cohabitation.). . . . But, see, State v. Hadinger (1991), 61 Ohio App.3d 820, 573 N.E.2d 1191 (Cohabitation requires "living together," regardless of whether parties are of the opposite or the same gender.); State v. Allen (1988), 42 Ohio App.3d 116, 536 N.E.2d 1195, motion to certify record overruled (1988), 38 Ohio St.3d 724, 533 N.E.2d 1063 (Common-law marriage-type of relationship is essential to a finding of cohabitation. Short period of living together without mutual support and without regarding the situation as a husband/wife situation is not cohabitation.); State v. Linner (M.C.1996), 77 Ohio Misc.2d 22, 665 N.E.2d 1180 ("Cohabiting" is generally defined as living together and functioning as a husband and a wife and includes homosexual couples.).

Having considered the above definitions of "cohabitant" and "family or household member," we conclude that the essential elements of "cohabitation" are (1) sharing of familial or financial responsibilities and (2) consortium. R.C. 2919.25(E)(2) and related statutes. Possible factors establishing shared familial or financial responsibilities might include provisions for shelter, food, clothing, utilities, and/or commingled assets. Factors that might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations. These factors are unique to each case and how much weight, if any, to give to each of these factors must be decided on a case-by-case basis by the trier of fact.

DeckerEnt
01-13-2009, 12:05 PM
Pictures say a thousand words. I would photo document everything.
Keith

PaulFiveOh
01-13-2009, 12:23 PM
I would hire a PI for this one.
Thats what they do.

They can get you knitty griittys like W2's, pay stubs etc.

347sc
01-13-2009, 12:29 PM
Matt I would think the proof of the mailing address and tax info should be enough. But with the way the systems seems to work its your burden to prove.Summon bank records for both parties and see if that can verify utilities,insurance,phone bills shared by the two.
Check with a lawler on the PI to see what holds up or not.

winner70ta
01-13-2009, 12:41 PM
Just an opinion here. I don't know when the proceedings began but if she has had the questionaire for three months that is well beyond returning them in a timely fashion. You have been through enough and are well versed that documentation is what the courts look for the most in delivering a verdict. If she says that she was renting then she should be able to provide cancelled checks. A response that she had paid cash would be pretty weak. I like the idea of having a P.I. but that really should have been done prior to initiallizing legal action. Certainly she would be minding her behavior now to avoid being caught in anything that would hurt her case.

01cobra
01-13-2009, 12:43 PM
Well included in the questions my attorney sent her were requestes for tax documents, bank records, utility bills and the like. We have not received those answers yet.
At this point I cannot afford a PI and she knows its coming now so Im not sure a PI would be able to get much more than I already have. My funds were limited so I took what I had to an attorney and gave him my money instead of a PI. I hope I made the right decision cause I cant go back now. I do have more than I am revealing here but she has so many outs on this one. Im putting a lot of faith in the responses I am going to get from her. That is what Im worried about.
I know its my burden of proof initially. But I think (or hope) once I prove they are living together the burden then shifts to her to prove it is not cohabitation. And speaking of burden of proof does anyone know what that is in a case such as this? Beyond reasonable doubt? Preponderance of the evidence? Some other legal jargon?

01cobra
01-13-2009, 12:55 PM
Just an opinion here. I don't know when the proceedings began but if she has had the questionaire for three months that is well beyond returning them in a timely fashion. You have been through enough and are well versed that documentation is what the courts look for the most in delivering a verdict. If she says that she was renting then she should be able to provide cancelled checks. A response that she had paid cash would be pretty weak. I like the idea of having a P.I. but that really should have been done prior to initiallizing legal action. Certainly she would be minding her behavior now to avoid being caught in anything that would hurt her case.

I filed 3 motions back in September of 08. Contempt, Full Custody of minor child, terminate spousal support. She got things postponed numerous times and finally obtained an attorney about 2 weeks ago. This attorney has stated he will attempt to force her to supply the previously requested documents. The contempt she has no defense. Custody she will lose. My attorney has told her and her attorney has openly agreed she will lose. That only leaves the spousal support. The financial records should indicate if rent was paid by her to him. I know it wasnt but she could say she paid cash and then fabricate recipts from him. The one thing they cannot deny is Warren county requires you to register any rental property. That has not been done. He would also be required to claim that money as income on his taxes.

347sc
01-13-2009, 01:09 PM
Sounds like you have a lot of what will be proof to the courts if you can get the records. The registering of rental property can bit him in the ass. Good buddy stick it to her.

PaulFiveOh
01-13-2009, 04:51 PM
At this point I cannot afford a PI

PM me.

DeckerEnt
01-13-2009, 04:54 PM
The Dad usually gets the raw end so often in these things. I say nail her to the wall. Use a sledge hammer if you can. Maybe it will start a trend. Also, PM Chris, Hardcore on here. He has some insight into stuff like this.
Keith