When is Alimony Terminated or Modified Based Upon Your Ex-Spouse’s Cohabitation? By: Richard H. Weiner, Esq.

When is Alimony Terminated or Modified Based Upon Your Ex-Spouse’s Cohabitation? By: Richard H. Weiner, Esq.

The New Jersey Superior Court Appellate Division recently reversed a lower court’s decision that denied a spouse’s motion to terminate alimony. In January 2004, the couple divorced and their marital settlement agreement provided that the husband would pay the wife $5,200 a month in permanent alimony. The agreement relieved the husband of his obligation if the wife cohabitated with a new partner. Last July, the husband moved to terminate his alimony obligation, claiming the wife either remarried or was living with a man she was in a relationship with for fourteen years. The lower court denied the motion and the husband appealed, contending he had a right to discovery and an evidentiary hearing, and the Appellate Division reversed the decision.

The Appellate Division held that the trial judge erroneously weighed the husband and wife’s competing sworn statements and accepted the wife’s version of the facts. When presented with competing certifications that create a genuine dispute about material facts, the court must allow for discovery and if there is still dispute, hold an evidentiary hearing. The husband merely had to show a prima facie case of cohabitation. Doing so requires the judge to consider the six items listed in N.J.S.A. 2A:34-23(n) below, but focus more on the definition of cohabitation. The meaning of cohabitation as defined by the Legislature is “a mutually supportive, intimate personal relationship” where the couple “has undertaken duties and privileges that are commonly associated with marriage or civil union.”

The six factors the court considers to determine whether there is cohabitation are:

  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 circles;
  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 the statute;
  7. All other relevant evidence.

The husband showed evidence from social media, the way the wife and her partner acted in public, and accounts from family members that the two lived together, had a fourteen-year relationship, and traveled together often. He hired a private investigator and was able to bring evidence that the wife’s new partner referred to her as his “wife,” they frequently went on trips together, and they spent holidays with one another. Among other proof, there was a clear indication that the wife was living in her partner’s Spring Lake home from April to June 2020. The wife refuted the information and claimed she was temporarily staying in Spring Lake to quarantine for the pandemic and denied marriage or cohabitation.

The only question for the judge to consider was whether the husband presented enough evidence to move forward with discovery and an evidentiary hearing. The Appellate Division found that it is critical for the judge to consider that movants may not have access to all information that would help prove cohabitation, thus further proceedings are required.

If you have any questions or concerns regarding a family law matter, contact our experienced attorneys at Aronsohn Weiner Salerno & Kaufman.

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