Graev v. Graev is one of those cases where once standard language is turned on its head by the courts, creating a sea of uncertainty it what was assumed to be a fairly straightforward provision of most divorce agreements.
In order to understand Graev, some background is necessary.
Spousal maintenance may be set either by the court or by agreement. Domestic Relations Law Section 248 gives the default conditions on which maintenance may be terminated. DRL 248 provides as follows:
§ 248. Modification of judgment or order in action for divorce or annulment. Where an action for divorce or for annulment or for a declaration of the nullity of a void marriage is brought by a husband or wife, and a final judgment of divorce or a final judgment annulling the marriage or declaring its nullity has been rendered, the court, by order upon the application of the husband on notice, and on proof of the marriage of the wife after such final judgment, must modify such final judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders, or of both, directing payments of money for the support of the wife. The court in its discretion upon application of the husband on notice, upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man, may modify such final judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders or of both, directing payment of money for the support of such wife.
The bold text is added.
Thus, if a wife who is receiving maintenance lives with her boyfriend, there shall be no termination of maintenance unless is “holding herself out as his wife.”
Ignoring the gender wording of this statute, which is a holdover from a bygone era, parties are free to stipulate to a different set of conditions under which maintenance will be terminated. One of the most common agreed upon conditions is to provide that maintenance will terminate when the wife cohabitates with an unrelated male or adult. The intent here of course, was to provide for a termination event when the former wife does not marry her live in significant other.
With this background in place, Graev v. Graev can be understood.
The facts in Graev are simple. When the Graevs divorced, their settlement agreement provided that Mrs. Graev’s maintenance would terminate upon her “cohabitation of the Wife with an unrelated adult for a period of sixty (60) substantially consecutive days.” The agreement was silent, as are most agreements, as to the definition of “cohabitation.”
Following the divorce, Mrs. Graev lived with an unrelated adult male, and Mr. Graev stopped paying maintenance. Mrs. Graev filed a motion to enforce the agreement, and Mr. Graev filed a cross motion to terminate his maintenance.
Following a hearing, the Supreme Court found in favor of Mrs. Graevs, holding that “an essential element of cohabitation is a shared residence with shared household expenses” and that Mrs. Graev did not function as an economic unit with her new boyfriend.
Mr. Graev appealed, and the Appellate Division affirmed in favor of Mrs. Graevs, holding the word “cohabitation” meant more than a romantic relationship, and required a sharing of finances or an economic relationship. In affirming, the Appellate Division found that Mrs. Graev and her boyfriend living together for sixty days in 2004, and were romantically involved in 2003 did not constitute “cohabitation.”
Mr. Graev appealed to the Court of Appeals, which reversed, holding the term “cohabitation” does not have a plain meaning, and that extrinsic evidence of the parties’ intent was necessary to determine what they meant in their stipulation of settlement. Therefore, the reversal required the case to be sent back to the Supreme Court for a hearing to determine what the parties meant by cohabitation.
In closing, Footnote 4 of the main opinion notes that
The wisest rule, of course, is for parties in the future to make their intention clear by more careful drafting.
The result now will be a new section in divorce agreements which define the term cohabitation in greater detail.