Want to Reduce or Eliminate Alimony? Proving NJ Cohabitation is Not so Easy
Alimony is a like one of those parking lots where you drive safely over protruding steel spikes, facing away from you, and the signs adjure in large letters: “DON’T BACK UP!!” Why? Entry is simple, but going backwards creates a very expensive exit and a need for at least two new tires.
In Robitzski v. Robitzski (App. Div. 2016), an unpublished post-judgment matrimonial opinion by the NJ Appellate Division, defendant ex-husband appealed from the trial court’s order denying him additional discovery from plaintiff ex-wife, relating to cohabitation issues that could affect his ongoing alimony obligation.
When cohabitation exists, whether under previous NJ case law, or as codified by statute in 2015, the payor spouse has the right to seek equitable relief from the court, because cohabitation is deemed quasi-marriage, justifying reduction or elimination of the underlying spousal support. Why? Because the payee spouse is considered no longer to need full support from the ex-spouse.
In this case, the motion judge denied the ex-husband’s request because it found that he had not made a facial showing of cohabitation that would justify full discovery and the attendant intrusion upon the ex-wife’s privacy. The Appellate Division affirmed the motion judge’s determination, finding that under either the statutory definition of cohabitation or the prior definition established in case law, the ex-husband did not present sufficient evidence of cohabitation, as he failed to present evidence that the finances of the ex-wife and her significant other were intertwined or that the ex-wife was financially dependent on the significant other, or of shared household chores. Therefore, the trial court did not misapply its authority in declining the ex-husband’s demand for full discovery.
After years of legislative debate, last September, Gov. Chris Christie signed alimony reform into law, which took effect immediately and significantly modified New Jersey’s alimony laws.
Cohabitation triggers a right to seek reduction or elimination of alimony support, depending on the facts of the case.
What is “cohabitation” as a basis to modify or terminate alimony support?
In Konzelman v. Konzelman, 158 N.J. 185, 202 (1999), and Gayet v. Gayet, 92 N.J. 149, 155 (1983), the N.J. Supreme Court defined cohabitation to include intimate, close, and enduring relationships that are beyond just living together or even having sex. Rather, “cohabitants” bear similarities to a family unit, where the household is more permanent, the relationship is lasting and serious, and the household reflects permanency and stability.
Cohabitation is also described in case law as behavior in which “the couple has undertaken duties and privileges that are commonly associated with marriage.”
Indicators for cohabitation include a long-term intimate or romantic connection, living together, joint finances (bank accounts, chores, and shared living expenses; and family and social acquaintance recognition of the couple’s committed relationship.
Our amended alimony statute defines cohabitation in similar ways.
Here are the statutory factors for the trial court to consider when an allegation of cohabitation is made:
(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 indicators of a supportive and intimate personal relationship;
(5) Sharing household chores;
(6) Whether the supported former spouse has received an enforceable promise of support from another person; and
(7) Other relevant evidence.
By statute, the trial judge must consider the length of the relationship and whether the parties live together, even if not on a full-time basis.
Under previous law, the obligor spouse’s initial showing created a presumption that shifts the burden to the payee spouse “to show… no actual economic benefit to the spouse or the cohabitant.” Ozolins v. Ozolins, 308 N.J. Super. 243, 245 (App. Div. 1998). If such a showing is made, the parties engage in discovery (written questions, oral questions, document production, etc.), followed by a full hearing.
Under the old standard, the trial court had to determine whether a third party contributed to the dependent former spouse’s living expenses or lived in the dependent spouse’s residence without paying his or her fair share. The issue, said one court, is “actual economic dependency, not one’s conduct as a cohabitant.”
The new statute is not explicit as to whether the third party must be shown to have contributed to the supported spouse’s financial support. It is one of the factors to be considered, but there is no indication that one or more of the standards should trump the others or be prerequisites. In my opinion, decisions in these cases will be based on the totality of the circumstances, the trial judge’s “gut feel” of the evidence and case, the qualitative nature of the relationship under review, and the extent to which the new couple holds themselves out to friends, family, the community, and the world as committed and long term partners.
“The test for determining whether cohabitation should reduce an alimony award has always been based on a theory of economic contribution,” says the case law.
The new statute also says that alimony may be suspended or terminated if the payee cohabits. It says nothing about alimony reduction as a remedy, although a good argument may be made for that result, as a matter of equity. If judges are forced to pick between suspending or ending alimony, many will be reluctant to do that. In some cases, the alternative of alimony reduction may be the best answer.
If you are divorcing, you need experienced and compassionate lawyers to advocate for you and help you get through a difficult process. Call the law offices of Hanan M. Isaacs, P.C., at 609-683-7400 or contact us online today to schedule your near-term and reduced fee initial consultation. You will be glad you did.