NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Alimony, Child Support, Child Custody, Prenuptial Agreements, Essex, Morris, Mercer, Atlantic

It seems as though a wave of cohabitation cases has recently swept across the Appellate Division in New Jersey. And for good reason. While well-settled is the concept that a supported spouse’s cohabitation typically will constitute a change of circumstances sufficient to justify end of a supporting spouse’s alimony obligation, the nuances of the law can be quite involved. This can been seen from the Appellate Division’s February decision in the case of Wonderlin v. Wonderlin, on which Sandra Fava blogged. That holding came down to evidence of the times and frequency that an unrelated male came and went from a former wife’s home, which, the Appellate Division ruled, entitled a former husband to discovery on the issue of whether the wife was cohabitating.

While the comings and goings of an unrelated male can be one indicia of cohabitation, in the case of Okoshi-Wilson v. Wilson, the Appellate Division examined a different source to prove cohabitation: the wife’s earnings as compared to her expenditures. There, the husband moved for a termination of his alimony obligation on the basis of the wife’s cohabitation with an unrelated male.

It seemed, based on the proofs submitted, that the husband had always earned a significantly greater salary than the wife, with the wife only earning about $47,000 in 2008 after her alimony of $22,500 per year was considered, as compared to the husband’s $164,164 the year prior. Despite this fact, the wife was apparently living in a posh, three-bedroom Upper East Side apartment, which she clearly was unable to afford on her salary alone. As it turned out, also a tenant of the same apartment was an unrelated male by the name of Steven Macy. This revelation led to the husband’s application for a termination of his alimony obligations. During the hearing at the trial level, Okoshi admitted that she had been able to maintain her New York City residence, because she was Macy’s tenant, allegedly paying him only $135 per week in rent and household work such as watering the plants, purchasing food, and collecting the mail. She further testified that Macy and his daughter only stay at the apartment about five times per month. Okoshi had documents to support some of her assertions — a lease signed by her and Macy and receipts for rent she paid in cash. She denied any romantic involvement with Macy and said he does not support her in any way.

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On March 10, 2009, the Appellate Division issued a precedential (reported) decision on the issue of the possession of a dog in the case of Houseman v. Dare.  To see the full text of the case, click here.

The parties were together for 13 years.  In 1999 they purchased a house together.  In 2000, they got engaged (but never married).  In 2003, they purchased a pedigree dog for $1,500.  Both parties were listed as the owners on the papers filed with the American Kennel Club.

In May 2006 Dare decided to end his relationship with Houseman. At that time, he wanted to stay in the house and purchase her interest in the property for $45,000 which was what he represented half of the equity to be. In June 2006, she signed a deed transferring her interest in the house to him.  When she vacated the residence in July 2006, Houseman took the dog and its paraphernalia with her. 

There seems to be little dispute that there was an oral agreement that Houseman was going to take the dog with her as her own when the parties separated.  However, thereafter, she allowed Dare to visit with the dog.  On one occasion in 2007 after watching the dog while Houseman was on vacation, he refused to give the dog back and the lawsuit ensued wherein she sought specific performance of their agreement that she keep the dog.  

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On February 3, 2009, my colleague, Katherine R. Sookhoo, an associate in or Philadelphia office,  wrote a very interesting article on cohabitation in our Pennsylvania Family Blog entitled For Love or Money.  I found the blog interesting for two reasons.  First, the rule of law between Pennsylvania and New Jersey are significantly different.  Second, although different, the difficulty litigants have in either jurisdiction in proving that their ex-spouses are cohabiting is the same. 

Pursuant to the Pennsylvania Divorce Code, divorce litigants are not entitled to alimony if they cohabit after they have been divorced.   However, in Pennsylvania, in cases resolved by way of Property Settlement Agreement, the Pennsylvania Divorce Code provision applies only if the agreement specifically states that cohabitation terminates alimony.

Unlike Pennsylvania, New Jersey statutory law does not prohibit receipt of alimony payments based upon cohabitation.  In New Jersey, while cohabitation may be considered a change in financial circumstances that permits a review and/or a modification of alimony, the fact that an ex-spouse cohabits does not necessarily mean that alimony will be terminated.  Konzelman v. Konzelman, 158 N.J. 185 (1999). 

While Pennsylvania and New Jersey have differing laws regarding cohabitation, both jurisdictions are plagued with the uncertainty of how the Court's define "cohabitation".  In Pennsylvania, there has to be a showing of a financial, social and sexual link, by sharing the same residences.  Miller v. Miller, 508 A.2d 550 (1986).  In New Jersey, the New Jersey Supreme Court  noted that “to constitute cohabitation, the relationship must be shown to be serious and lasting” and that  “a mere romantic, casual or social relationship is not sufficient to justify enforcement of settlement agreement provision terminating alimony upon dependent spouse's cohabitation; such a provision must be predicated on a relationship of cohabitation that can be shown to have stability, permanency, and mutual interdependence” Id.  

Therefore, does cohabitation exist if your ex-spouse and her paramour switch back and forth in sleeping in their respective residences?  If they stay together only on weekends?  If they have resided together for a month?  How about a year?  What if their finances are totally separate? In either Pennsylvania or New Jersey, the answers to those questions are not entirely clear and Courts determine the issues on a case-by-case basis.

Because there is no exact definition of "cohabitation", proving that cohabitation exists may be tricky and requires a thorough analysis of the circumstances before raising the issue in Court.  If a litigant is going to allege cohabitation, before doing so, they should make sure that factually and legally, they have enough to get beyond the "grey" area because (1) if you are going to proceed in Court, you want to prevail; and (2) you don't want to go to Court, lose, and give your ex-spouse the ability to further avoid termination of alimony now that they know your on to the cohabitation.   

 EDITOR'S NOTE:  Apple is absolutely correct regarding the grey areas. That said, there have been a number of unreported Appellate Division decisions over the last year or so that have been more permissive in what amounts to cohabitation.  Specifically, many of the cases suggest that staying together every single night may not be required, and that the location is not entirely important (ie. some nights at her house and some nights at his house.) 

However, once some semblance of cohabitation is shown, unless the divorce Agreement specifically calls for the termination of alimony, and most don't, the next issue to address is the financial interdependence between the former spouse and cohabitant.  Put another way, cohabitation is not enough to terminate alimony in the typical case.  You have to look at the financial impact of the cohabitation.  Eric S. Solotoff

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The law surrounding palimony has been fluid in the last several months as the New Jersey Courts have refined litigants rights after the break up of relationships in which the parties were not married. Most of the decisions are consistent with the New Jersey Supreme Court's decision in Kozlowski v. Kozlowski, 80 N.J. 378 (1979), which had held that a promise of lifetime support by one cohabitant to another in a marital-like relationship would be enforced, if one of the partners was induced to cohabit by the promise.  The court held that the right to such support is found in contract principles and that the contract may be either express or implied. This principle has been upheld consistently by the Courts.

In a most recent case, however, Bayne v. Johnson, decided October 27, 2008 and approved for publication, the Appellate Division denied palimony to a woman who had had a long standing, marital type relationship with her paramour. The unique facts in this case involved an entrepreneur, Earl Johnson, who had married a wealthy woman twenty years his senior for convenient purposes. In 1981, Mr. Johnson met, Fiona Bayne, a flight attendant, on a trip between London and Dublin. Over the course of the next 19 years, they engaged in a serious relationship. At first, Ms. Bayne did not know about Mr. Johnson’s marriage, but eventually found out. After getting over the initial shock, the three proceeded to live together in different locations including Florida, Las Vegas, Chicago, the Bahamas, and New Jersey. During this time, Ms. Bayne became the caretaker of Mr. Johnson’s wife, and they lived an upscale lifestyle which was in part over the years supported by a joint bank account to which the three had access and was funded by the significant trust income of Mrs. Johnson. Ms. Bayne’s name was listed on this account as “Johnson”, and there was testimony that Mr. Johnson and Ms. Bayne held themselves out to be husband and wife. During the course of the relationship, Ms. Bayne was heavily involved in certain business interests of Mr. Johnson, as a manager. Although Mr. Johnson had many business interests throughout this time, most were not successful and the parties’ lifestyle was derived from the income of elderly Mrs. Johnson.

In 2000, Ms. Bayne left Mr. Johnson. She initially remained on the East Coast, but then returned to her home in the UK. She subsequently sued Mr. Johnson, claiming that she was entitled to palimony based on an alleged agreement to pay her future support.

The Appellate Division found that Ms. Bayne was not entitled to palimony. The Court agreed with the trial court which found that there was a marital type relationship between Mr. Johnson and Ms. Bayne, which is the first requirement for a palimony award. However, the court disagreed with the trial court’s finding that there was an implied promise by Mr. Johnson to support Ms. Bayne for her life. The Appellate Court determined that Ms. Bayne knew that Mr. Johnson was essentially a failed entrepreneur, and that she knew that he was dependent on his wife’s money. Thus, her request for palimony was denied based upon the fact that at the time of their separation, Ms. Bayne was actually more economically self sufficient than Mr. Johnson. The court pointed out the essential fact that palimony is the enforcement of a broken promise made for future support, and not compensation for years spent in a failed relationship.

Almost as foreshadowing, on October 2, 2008, S-2091 was introduced by State Senator Nicolas P. Scutari introduced legislation which is intended to overturn these "palimony" decisions by requiring that any such contract must be in writing and signed by the person making the promise. More specifically, the bill provides that a promise by one party to a non-marital personal relationship to provide support for the other party, either during the course of such relationship or after its termination, is not binding unless it is in writing and signed.  To see the bill, click here.

There is not doubt that there will be spirited debate on the issue of whether the legislature should prevent a court of equity from determining whether one is entitled to palimony. It appears from the Bayne case that the Courts are more than able to review each case on its own fact and merits and determine when relief is appropriate.

EDITOR'S NOTE:  If and when the proposed palimony bill is passed, we will update the blog accordingly.  If it is passed, that will essentially represent the death knell of palimony cases because the promise is virtually never put it writing.  it would also do away with the concept of "implied promise" found in these cases.   Eric S. Solotoff

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Keith R. McMurdy, a partner in our New York office, wrote a terrific piece on Civil Unions and Tax Implications on his Employee Benefits Blog.  There was reference in the article to New Jersey issues.

To view the article, click here.

To view his blog, click here.

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