01cobra
01-13-2009, 10:54 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.
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.