Catching The Cohabiting Ex-Spouse

By Jason K Jensen, Private Investigator

A. The Persistent Alimony – the Problem

If you have ever been divorced, are divorcing or know someone who is divorced, you know how alimony can pose a real hardship on the payor. You then will identify well with this article. Monthly alimony payments can be more burdensome to you than a tax debt. The longer the term of the former marriage the longer the duration you are obligated to pay spousal support. As each month passes by you grow more and more wary. When you start dating again, your finances limit your outings because your ex-spouse’s stronghold of your income requires you to pay alimony first before you can pay for entertain. Then one day, you are ready to say new wedding vows, but your wedding plans are stifled because the ex is still just playing the field. He/she knows a race to the altar will make you happier than it will him/her. You imagine he/she is relishing the fact he/she receives "free money" from you, and it seems for both of you there is no end in sight. Once you are finally married, you and your new spouse have to juggle, beg and borrow to pay the bills, because you are expecting a new baby and now you are no longer a two-income family while on maternity leave. Meanwhile, each month that check still has to be issued to the ex, while he/she has been dating steadily for a couple years now. You shout internally to yourself "Why don’t they just get married!?!" However, the question is rhetorical. You already know the answer. The divorce decree has provided the ex with a financial windfall for years. Now you have a toddler, but growing medical bills bring you and your spouse to the brink of yet another argument about the ex and your alimony dues. How nice it would be if you didn’t have that in the way? You could get on your feet financially again or you could get into that bigger home to fit your growing family. The ex is keeping you pinned down are your thoughts.

But there are rumors; you hear that the ex is possible engaged. However, there are no reports of a ring or a wedding date. However, each time you run into them at the store they are together. Each time you drive pass the house on your way to work you notice both of their cars at the same address each morning. You to suspect they are cohabiting and those are the signs. How do you bring this issue to light? How do you get your alimony obligation terminated on the grounds of cohabitation.

To do this right, consult an attorney first. You need to know what the law is governing your jurisdiction. The next suggestion is employ an experienced private investigator who has a tested track record in the court system. Do not hesitate to ask for case experiences? Court records are public records, so confidentiality should no longer be an issue once case is closed.

A. What Must be Accomplished

Speaking generally, what must be proved is that the couple is residing together in a relationship that is of a conjugal nature. In the words used by other courts, you must prove that the couple is in a relationship akin (meaning "like") to a marriage. So let’s break that down:

1. Residing Together

There are two ways to demonstrate that the couple is residing together. First, show where they share a residence. Contrary to popular myth, that is not the easiest approach. You can take volumes of pictures or video. You can interview neighbors, friends, coworkers, the landlord, etc to establish that these two share the residence where you suspect they are cohabiting. However, that demonstration is rebuttable if the ex’s cohabitant still has his/her original home or apartment. Moreover, the ex can claim that they are only "roommates." That claim would require you to either show they are intimate or sexual or you have to sufficiently impeach him/her.

The second approach is actually the easiest approach. Learn where the ex’s lover used to resided is a lot easier. How you ask? You can contract a private investigator to run a database report about the individual. A comprehensive report will identify the person’s residential history, among other details. Investigate the last known address for the lover. If it is occupied by a new family, then it becomes easy to show the ex and his/her lover live together because they are unable to claim they are living apart. (You still have the problem of the "roommate" defense). Beware: Verify from the comprehensive report that he or she is not the land owner. He may be renting it. He may be sharing the residence.

It is recommended that someone consult the County Recorder’s Office to identify the land owner and obtain the owner’s address. You can then provide the information to your attorney or private investigator in order to contact the landlord for a discreet conversation or a formal interview. Moreover, copies of lease agreements and payments can be subpoenaed from that landlord in order to show that there are new tenants occupying the last known address of the ex’s boyfriend/girlfriend.

But even if they maintain duel residences, one can still show cohabitation if you can demonstrate that the couple possesses the freedom to come and go. What this means is if you have evidence like they each have keys to the residence. The primary renter/owner does not have to be present in order for the other to enter or remain. There are others, but these are the primary indicators to watch for to build your case.

2. To Defeat the "Roommate" Defense – Conjugal Evidence

In order to defeat the "roommate" defense, your job is cut out for you. You cannot let the case stand on a he-said-she-said, you will lose. It’s your burden since you want to terminate the alimony. The law of the case is that alimony "shall be paid until until . . . ." There is no other way to put this than bluntly. You must catch them in the act of intimacy to refute the roommate defense. That can be accomplished through direct evidence or circumstantial evidence. Your best case scenario is an act of sexual intercourse. However, you are not likely to ever catch them engaged in intercourse. The fruition of that old saying "If that van’s a rockin . . . ." rarely happens with witnesses. If you did that would be clear and convincing evidence defusing the issue of roommates altogether. But there are other sources including admissions of sexual intercourse that are just as conclusive. Love letters, birthday cards, flower arrangements, past mating rituals, Facebook or other social sites all can be helpful sources. Everyone has a best friend that they share these secrets with. Find that person and get them to talk and you are in business. Unfortunately, loyalty runs deep among friends and family members, especially if they know why you are asking and they want to protect your ex, or maybe they just want to stay out of it. Traditionally from a private investigator’s standpoint, we rummage through trash looking for evidence of the intimacy as part of the business. Often times, but not always, the cohabitants will discard paraphernalia of their sex-capades. I have found used condoms and condom wrappers, photos, semen samples, feminine hygiene products with blood or other discharge, etc. DNA collected from these items can also make the case.

Warning: Before you just into someone’s trash can, you must know the relevant case law concerning your jurisdiction. Case law created by law enforcement activities have cleared the way for dumpster diving by virtually anyone. Generally, the only time one can lawfully retrieve another’s trash is once it hits the curbside. At that point, the individual loses his/her right of privacy, and the trash transforms to public property. That is important in order to avoid trespassing allegations.

Other examples likely to produce evidence against the roommate defense can be documented from the couple’s date nights, special occasions, holidays (especially Valentines Days or Christmas), each others birthdays, family functions, weekends, etc. Catching them displaying intimacy is challenging but it can be done. You must observe them having a moment of passion, exchanging love glances, kissing, embracing, hugging, etc. Take whatever they offer. Also, the older the couple is the less affectionate the couple will typically behave in public settings, so don’t waste time.

Bear in mind, time is on your side if you have the patience. The longer they are living together, the more occasions the couple provides the general public to build basic impressions about the depth of their relationship. The easiest way I can explain your case and how long the investigation should run is to use a baker’s bread in an analogy. You don’t have to eat the entire loaf to decide whether it tastes good. You just need a slice. The more loaves, and the more slices you eat, the clearer the situation appears that you are in a bakery. The slices of bread here are days of observations, and the bakers are the cohabitants. The more days of your observations (and the more sources of your information) about the cohabitants, the clearer the case becomes for the judge to conclude that the two are indeed cohabiting.

Now you can continue to hold your breath until those two get married or you can start retrieving your evidence today.

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