Arndt, Sutak & Miceli, LLC

Cohabitation or Dating….how do I know if alimony will change?

Whether you want a divorce or not, your former spouse beginning a relationship with someone new can be difficult to stomach for a variety of reasons. When there is an ongoing support obligation, or someone is negotiating whether there will be, a common issue that is raised is the effect that a new relationship will have on support. Lawyers will often explain that alimony can typically be modified or terminated if there is a finding of cohabitation.

Many people believe, mistakenly, that cohabitation requires that two parties share one home. Some believe that cohabitation cannot be found if the couple keep a separate home from their new partner. It is important to understand the difference between dating and cohabitating whether you are paying or receiving alimony. New Jersey Courts have long held that a supported spouse’s (the person receiving alimony) cohabitation impacts the supporting spouse’s (the payor of alimony) alimony obligation. Specifically, the Appellate Division has found that cohabitation could result in a modification of alimony, and in some circumstances, a termination of alimony.

In fact, the New Jersey Supreme Court in Lepis v. Lepis held that cohabitation is a recognized change of circumstances that warrants a review of an alimony award. While cohabitation alone may constitute “changed circumstances” granting a party discovery and a hearing, in order to determine whether a modification is appropriate will depend on whether the relationship reduced the financial needs of the dependent former spouse.

But how does the Court actually define cohabitation? Courts in New Jersey have described cohabitation as a relationship that is “serious and lasting” (Konzelman v. Konzelman, 158 N.J. 185 (1999)), involving “an intimate, close and enduring relationship and requiring “more than a common residence or a mere sexual liaison.” Reese v. Weis, 430 N.J. Super. 552, 570 (App.Div.2013).

The alimony statute, as amended in 2014, states that alimony may be suspended or terminated if the supported spouse cohabits with another person in a “mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain one single common household.” In fact, the statute provides a list of factors for the Court to consider when attempting to determine if there is cohabitation. Subsection (n) lists factors a court “shall consider” to discern whether cohabitation is occurring including:

1. Intertwined finances such as joint bank accounts and other joint holdings or liabilities;

2. sharing or joint responsibility for living expenses;

3. recognition of the relationship in the couple’s social and family circle;

4. living together, the frequency of contact, the duration of the relationship, and other

indicia of a mutually supportive, intimate personal relationship;

5. sharing household chores;

6. whether the recipient of alimony has received an enforceable promise of support

from another person within the meaning of subsection h of [N.J.S.A.] 25:1-5; and

7. all other relevant evidence.

Its important to understand that it is not required that a person prove cohabitation based on every factor. Nor are the factors ranked in order of importance. In fact, it is within the sole discretion of the Judge to determine what weight should be given to any single factor or combination of factors. In Wajda v. Wajda, No. A-3461, (App. Div. 2020), the Appellate Court noted that “obtaining evidence to prove many of these factors, such as intertwined finances and shared living expenses and household chores, cannot be obtained without either invading a former spouse’s privacy or taking some discovery on the issue.” However, in order for the Court to grant the request for discovery, sufficient and convincing proof of prima facie evidence of cohabitation must be presented before the Court will enter a discovery order. Landau v. Landau, 461 N.J. Super. 107 (2019).

Recently I had the opportunity to present a case before the New Jersey Appellate Court where I sought to uphold a trial decision that terminated my client’s alimony obligation to his ex-wife.

My client and his ex-wife had been married in 1990 and had three children together and were divorced in 2011. My client agreed to pay open durational alimony to his ex-wife in the amount of $2,085 per month or until his ex-wife, remarried or cohabitated with an unrelated male in a relationship tantamount to marriage. In 2017, my client filed for termination of his alimony obligation based upon her cohabitation with her boyfriend. They had been dating for three years and he maintained a separate residence with his sister. He cut the lawn at her home, bought groceries, remodeled a closet and bathroom in the home, parked his vehicle at her home that was available for her sole use, and they attended family events as a couple. They posted on social media as being in a relationship and they celebrated anniversaries.

After a multiple day trial, including testimony from a private investigator about the number of overnights they spent with one another, the trial Court terminated my client’s alimony obligation retroactive to the date he filed his motion, some 10 months earlier, ordering that she return the overpayment of alimony. His ex-wife promptly appealed this decision stating that he failed to prove that the parties has intertwined finances among other claims. The appellate court ultimately affirmed the termination of alimony after finding that an application of the factors supported the judge’s finding of cohabitation, and reaffirming my client’s entitlement to nearly $80,000 in overpaid alimony.

Because the determination of cohabitation is a fact sensitive determination where all facts can matter, it is imperative to take time to develop evidence to support that the relationship is more than merely dating. Contact us today if you should have any questions about cohabitation and its impact on alimony.

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