In the case of Graev v. Graev, the Husband agreed to pay the Wife spousal support of $10,000 per month until August 2009 or until the Wife’s cohabitation with an unrelated adult for a period of sixty substantially consecutive days. 

 In 2004, the Husband stopped payments to the Wife claiming that she was cohabiting with an unrelated person who had stayed overnight at the Wife’s residence for at least sixty days and that their relationship was similar to that of lover and life partner.  The Wife claimed that she had not been cohabiting with the unrelated person because their relationship had been platonic for many years.

 The Supreme Court held that because the term cohabitation was not defined in the settlement agreement, its plain meaning applied: living together as partners in life, usually with the involvement of sexual relations.  The Supreme Court held that cohabitation had not occurred in this case and sided in favor of the Wife.

 The Appellate Division, 1^st Department agreed with the Supreme Court and also noted that no evidence had been introduced that the Wife and the unrelated person shared household expenses or functioned as an economic unit.  Thus, no cohabitation had occurred.

The Court of Appeals reversed, declining to take the position that cohabitants must function as an economic unit.  The Court held that without extrinsic evidence as to the parties’ intent regarding the definition of cohabitation in the settlement agreement, there is no way to assess what was meant by that term.  The Court remitted the matter for a hearing on the parties’ intent behind the term cohabitation.

In a Divorce Action in Supreme Court or a Support Proceeding in Family Court where one spouse is seeking maintenance or support from the other, it may be helpful to retain the services of an occupational or vocational evaluator to assess the request for financial support. 

 An occupational expert can be very helpful if a spouse is voluntarily unemployed or underemployed merely to receive a maintenance or support award.  The vocational expert can be hired to provide an opinion on the spouse’s ability to earn future income and therefore be self-supporting. 

The data that an occupational expert will need to develop their expert opinion is usually obtained by the vocational expert from objective sources, such as national and local salary statistics, and can be used to impute future income to the spouse seeking maintenance or support.  Typically, the expert also delves into the education, licensure and/or certification, employment history, and medical history (including any disabilities and impairments) of the spouse requesting financial support. The expert’s opinion can be a useful tool in eliminating or minimizing the amount or duration of any maintenance award.