Saturday, December 13, 2008

Cohabitation Ambiguous?

Never underestimate the ability to make an argument that is imaginative. Success turns the imaginative into brilliance while failure may leave the advocate looking ... well... flaky. Which is what I thought of the Graev case and its description at Adams Drafting blog.

Who knows what ambiguity lurks in the heart of contracts? Well, reader Steven Sholk has an inkling, because he’s the one who told me about Graev v. Graev, 2008 N.Y. LEXIS 3252 (N.Y. Oct. 21, 2008), a case that involves the meaning of the word cohabitation.

As part of their divorce settlement agreement, Mr. Graev agreed to pay Mrs. Graev spousal support payments until the earlier of August 10, 2009, and occurrence of one of various “termination events,” including “[t]he cohabitation of the Wife with an unrelated adult for a period of sixty (60) substantially consecutive days.” The contract didn’t define cohabitation.


Mr. Graev appealed again, and the Court of Appeals (the highest New York appellate court) reversed and remitted the case to the lower court for further proceedings. The Court of Appeals held that the word cohabitation as used in the separation agreement doesn’t have a plain meaning, and that without extrinsic evidence as to the parties’ intent a court would have no way to assess what particular factors inherent in the dictionary meanings or caselaw discussions of cohabitation the parties had meant to embrace or emphasize.

Which is what makes the practice of law fun.

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