Post-NJ Divorce, How Difficult Should It Be to Prove Your Ex is Cohabiting With Another?
A recent New Jersey Supreme Court decision touched on two critical issues that affect many of those paying and receiving spousal support or alimony. Living with another (or cohabitating) could provide grounds to disqualify someone from receiving alimony. How difficult should that be to prove? The Court’s August 2023 decision made it easier to prove an ex is cohabitating with another post-divorce and, potentially, end their spousal support.
What is Discovery?
The decision involves spousal support, how it may potentially be cut off, and discovery. Discovery is part of the litigation process, where the parties obtain information from each other about facts and documents affecting their legal dispute. It can be information, documents, or interviewing parties and witnesses under oath by attorneys for both sides (called a deposition). What’s requested could be evidence used in the case or something that may help lead a party to possible evidence. “Relevance” is not a valid objection to a discovery demand.
What is Alimony or Spousal Support?
Alimony is financial support given by one party to another. It can be granted when the parties no longer live together but are still married during the divorce process. As part of the divorce, a spouse may receive support for a limited time or until the other’s actual retirement post-age 67.
What is Cohabitation, and Why Does It Matter?
By NJ law, a party may lose their right to alimony (temporarily or permanently) if they cohabit with another. Under state statute, “Cohabitation involves 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 a single common household.”
That same statute spells out the factors a judge should consider when deciding if a person receiving spousal support is cohabitating with another:
- Intertwined finances such as joint bank accounts and other joint holdings or liabilities
- Sharing or joint responsibility for living expenses
- Recognition of the relationship in the couple’s social and family circle
- Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive, intimate personal relationship
- Sharing household chores
- Whether the alimony recipient has received an enforceable promise of support from another person…
- All other relevant evidence
Not all of these factors must be met for a judge to find a person is cohabitating with another.
How is This Issue Normally Brought Up to the Court?
If the person paying alimony (the payor) learns the other party (the payee) may be cohabiting with another, they can ask a family court judge to amend the divorce order to state they’re no longer obligated to make payments. But how much evidence does the payor need to convince a judge they can stick their discovery nose into the business of the payee and their alleged partner?
The State Supreme Court Sets a Lower Bar for Payors to Pass
That’s the issue decided by the Court in Cardali v. Cardali, and the outcome is: Not a lot. The ex-husband raised the issue in the trial court, which responded that discovery wouldn’t be allowed since he hadn’t shown a “prima facie” case of cohabitation. He appealed the decision to an Appellate Court, which agreed with the lower court. The NJ Supreme Court overturned those decisions.
The payor, Michael Cardali, thanks to a private investigator, presented evidence relevant to some of the cohabitation factors but lacked evidence of a financial relationship between his ex-wife, Suzanne Cardali, and her alleged partner, Bruce McDermott. Michael argued he was in a “chicken and the egg” situation. Without discovery, he couldn’t obtain the financial information needed for the court to allow discovery.
The lower court denied Michael’s request for discovery to potentially change the couple’s property settlement agreement because he hadn’t shown a “prima facie” (or preliminary) case of cohabitation by not showing evidence concerning all the cohabitation factors a judge could consider.
The Supreme Court stated the party seeking discovery must “show cohabitation to the satisfaction of the (trial) court” and that it would be enough to provide sufficient evidence “which a trier of fact could conclude the supported spouse and another are in ‘a mutually supportive, intimate personal relationship’ in which they have ‘undertaken duties and privileges that are commonly associated with marriage or civil union.’”
The court ruled that the payor need only provide a “threshold showing…so that the privacy of the spouse or civil union partner receiving alimony is not invaded in pursuit of a baseless cohabitation claim.” It went on to state:
[T]he mandate that a movant present a prima facie showing in order to obtain discovery is not intended to impose a high bar….[T]he movant (the party seeking discovery) is entitled to an assumption of the truth of his allegations and the benefit of all reasonable inferences to be drawn from the evidence he had marshaled.…The movant’s burden at the preliminary stage is not an onerous one.’
Trial courts shouldn’t find the movant has failed to present a prima facie just because the other party disputes relevant, alleged facts. The court also found that, at this early stage in the process, it’s unfair to ask payors to provide facts supporting their claims for all the factors listed in the statute, especially financial information, which people usually closely guard.
Instead, if the movant presents a certification (listing facts) supported by competent evidence as to at least some of the relevant factors, and if that evidence, if unrebutted, would sustain the movant’s burden of proof as to cohabitation, the trial court should find that the movant has made a prima facie showing even if the spouse or civil union partner receiving alimony presents a certification contesting facts asserted by the movant.
As a result, if you believe your ex is cohabitating with another and you should no longer have to pay spousal support, the New Jersey Supreme Court just made it easier for you to find evidence that supports your belief. If you have been accused of cohabiting with another and it just isn’t true, then you need excellent legal help on which to defend.
Contact Our Family Lawyers
If you would like to speak to a member of our firm about alimony or another family law matter, please get in touch with our Princeton office to arrange a consultation. We accept credit cards and offer general appointments from 9 a.m. to 5:30 p.m., Monday to Friday, plus evening appointments during the week by pre-arrangement only. Please write us online or call us at 609-683-7400. Call today. You will be glad you did!