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When a former spouse receiving alimony begins cohabiting with another person, what happens to the payor spouse's support obligation?  Does it terminate?  Is it reduced?  Many people often confront this question and the answer is not always as simple as one would think.  Simply put, merely cohabiting with another person does not automatically entitle the payor spouse to a termination or reduction of support.

As we have blogged about many times before, alimony may be modified upon a showing of "changed circumstances" pursuant to the New Jersey Supreme Court's decision in Lepis v. Lepis, 83 N.J. 139 (1980).  A supported, or dependent, spouse's cohabitation with another person could constitute such a change, which can actually be rendered effective retroactive to the date of the cohabitation itself, rather than the date of the motion filed with the Court.  According to the Supreme Court, cohabitation should lead to a modification where  "1) the third party contributes to the dependent spouse's support, or 2) the third party resides in the dependent spouse's home without contributing anything toward the household expenses."  As explained by the Supreme Court, a modification or termination may occur only if one cohabitant "supports or subsidizes the other [cohabitant] under circumstances sufficient to entitle the supporting spouse to relief."

It was the second scenario that was recently at issue in the Appellate Division's unreported decision, Duarte v. Duarte, where the new person with whom the dependent wife cohabited made no contribution towards household expenses.  Even though the wife was still dependent on the former husband's alimony payments, the Appellate Division concluded that the wife's dependency may have been self-created since it was clear that, to a degree, she supported the person with whom she cohabited without seeking contribution from him for household expenses.  Ultimately, the matter was remanded to the trial court so that it could determine an amount to impute to the wife as her support for the third party, which would then be utilized to reduce the ex-husband's alimony payments.

Thus, while the standard for when cohabitation could constitute "changed circumstances" is clear, it is also clear that each case will be decided on its own facts to determine whether the standard is fulfilled.

EDITOR'S NOTE:  THOUGH PEOPLE SOMETIMES FORGET, THE LAW IS PRETTY CLEAR. WHEN LOOKING AT THE IMPACT OF COHABITATION, THE INQUIRY IS NOT ONLY WHETHER THE ALIMONY RECIPIENT IS BEING SUPPORTED BY THE COHABITANT BUT WHETHER THEY ARE SUPPORTING THE COHABITANT.  PUT ANOTHER WAY, THE INQUIRY OF ECONOMIC IMPACT FLOWS BOTH WAYS.  TOO OFTEN, THE SECOND POSSIBILITY IS IGNORED.  ERIC S. SOLOTOFF

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In an interesting unreported decision released yesterday in the case of Christopher v. Christopher, the Appellate Division reversed a trial court opinion granting the wife permanent alimony. 

The parties were married 2006 and the Complaint for Divorce was filed in December 2004.  Interestingly, the trial court found and the Appellate Division affirmed the tacking of the period of premarital cohabitation to the length of the marriage.  Thus, the 8 year marriage became a 9 year marriage. 

Even still, the Appellate Division found that the relationship was simply too short to award permanent alimony.  Rather, citing the reported Cox decision, the Appellate Division again noted:

limited duration alimony is not intended to facilitate the earning capacity of a dependent spouse or to make a sacrificing spouse whole, but rather to address those circumstances where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate. Those circumstances stand in sharp contrast to marriages of long duration where economic need is also demonstrated. In the former instance, limited duration alimony provides an equitable and proper remedy. In the latter circumstances, permanent alimony is appropriate and an award of limited duration alimony is clearly circumscribed, both by equitable considerations and by statute.

The Appellate Division in Christopher deemed this to be a marriage of short duration.  Moreover, despite finding that the husband (a medical doctor) will probably earn more in the future and the wife (a personal trainer) will probably not earn enough to maintain the marital lifestyle in the foreseeable future, those facts alone don't justify permanent alimony in a marriage of short duration.

While not precedential, this case is instructive because it is not unlike many cases that we see and that come before the Courts.

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Many times a Property Settlement Agreement or Judgment of Divorce will address the payment of alimony.  An alimony calculation, among other factors, is calculated upon the length of the marriage, the income of the parties, the assets each will receive by way of the divorce, the age and health of the parties, and the age of children, if any, etc.  The standard in New Jersey for a divorcing spouse is the ability to maintain the 'marital standard of living' or as close thereto as may be economically possible.

So, does permanent alimony really mean forever? The answer depends on the language in an Agreement or Judgment of Divorce.  There is case law in New Jersey stating that cohabitation may be a cause to terminate alimony.  However, cohabitation alone is insufficient unless the Agreement states otherwise.  There also needs to be some financial benefit or economic intermingling.

Recently, the Appellate Division issued an unpublished decision in the matter of Adessa v. Adessa, A-2854-07T2, decided May 29, 2009, wherein husband filed a motion seeking to terminate his alimony obligation based upon his former wife's cohabitation or alternatively, requesting a hearing and discovery to determine if there was an economic benefit being received by former wife as a result of her relationship.

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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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Most people have heard or had experience with an attorney who's behaviors were, one could say, questionable.  What most have not considered is what implications an attorney's unethical or questionable behaviors could have on them.

The New Jersey Supreme Court has provided some guidance on this very topic in the recent decision of Brundage v. Estate of Carl V. Carambio.  Carol Brundage hired her attorney to represent her in her claim for palimony against the estate of her deceased paramour.  She probably had very little knowledge of what other matters her attorney was handling in his office.  Little did she know that her attorney, just months before beginning his representation of Carol Brundage, represented another woman, Jeanette Levine, in a different county, but also for a claim of palimony.  Carol Brundage also is likely not to have known that in Ms. Levine's case, the trial court determined that she would not succeed on her claim for palimony because cohabitation was an essentail element for success on a palimony claim, and those parties had not lived together.  Her attorney filed an appeal raising the question of whether cohabitation is an indispensible element of a cause of action for palimony.  (Click here for  Eric Solotoff's blog entry above on the recent Supreme Court decision in that regard).  Carol Brundage never lived with her now deceased paramour.

Her attorney went on to represent Carol Brundage with his appeal on the Levine matter pending. The Estate filed an application to dismiss Ms. Brundage's Complaint claiming that cohabitation was an essential element.  In his representation of Ms. Brundage, her attorney convinced the trial court that cohabitation was not essential and thus the Estate's application was denied.  In his argument, her attorney failed to mention his experience with the trial court in Ms. Levine's case nor did he mention that the issue was pending on appeal.

The Estate then filed a motion for leave to appeal with the Appellate Division.  In opposing that motion, the attorney did not disclose the contrary conclusion reached by the trial court in Ms. Levine's matter or the fact that an appeal was pending.  The Appellate Division denied the Estate's motion and eventually the parties' settled.

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Palimony is claim made, typically, by a unmarried cohabitant, seeking money because the other party made a promise to support her or him for life.  The promise can either be express or implied by the parties' conduct.  If successful in proving the claim, the recipient is entitled to a lump sum equal to the present value of being supported for life based upon the recipient's life expectancy. 

On June 17, 2008, the long awaited opinion from the New Jersey Supreme Court in the case of Devaney v. L'Esperance was released. 

After a number of of Appellate Division cases in the last several years, including this case, held that a bright line for palimony cases was cohabitation, the issue was ripe for review by the New Jersey Supreme Court, especially after a 2007 decision by Judge Hayden, in Federal Court, questioned whether the New Jersey Supreme Court would require cohabitation. 

The facts in Devaney  are as follows.   In 1983, Helen Devaney, then twenty-three years old, began working for Francis L’Esperance, Jr. (then 51 and  married to his current wife for approximately twenty years) as a receptionist for his ophthalmology  practice.   The parties began
a twenty-year long intimate relationship. During that time, L’Esperance continued to live with his wife and never cohabited with Devaney, though for a time they vacationed and had dinner together several time per week. L’Esperance also promised to divorce his wife, marry Devaney, and have a child with her. However, not happy with L’Esperance’s failure to keep his promise, Devaney moved to Connecticut and then to Seattle, Washington. She moved back to New Jersey to
a condominium leased by L’Esperance because he again promised to leave his wife, marry her, and have a child with her. It was not disputed that  L’Esperance provided financial support to Devaney, including purchasing the condominium unit; paying for her undergraduate and graduate education , purchasing a car for her use; and provide her with money for various other expenses. However, L’Esperance’s promise to divorce his wife and marry Devaney was unfulfilled. The parties also decided to have the baby, but Devaney learned that she would have difficulty conceiving., L’Esperance then decided he did not want another child. The relationship eventually ended, Devaney began a relationship with another man, and L’Esperance evicted Devaney from the condominium.

Both the trial court and Appellate Division found that the parties did not have a marital type relationship but rather, only had a "dating relationship."  Ultimately, the Supreme Court agreed and affirmed the denial of palimony. 

However, they also held that though cohabitation is one of the many factors a trial judge should consider in determining whether a plaintiff has proven a marital-type relationship to support a claim for palimony, it is not essential.  The Supreme Court further held that in these highly personalized cases, it is conceivable that a plaintiff, even in the absence of cohabitation, may establish a marital-type relationship and prove a claim for palimony.

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