Posted on July 13, 2009 by Robert A. Epstein

COHABITATION-WHAT HAPPENS TO MY SUPPORT?

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

Tags: , , , , , , ,
Posted on June 14, 2009 by Sandra C. Fava

COHABITATION TO TERMINATE ALIMONY?

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.

The parties married in 1984 and divorced in 2006. Their Agreement required husband to pay permanent alimony, which would be terminable upon either party's death, wife's remarriage or her cohabitation. Husband's motion sought termination based upon cohabitation. Husband alleged cohabitation was proven by the fact that former wife and boyfriend purchased property together in Maine; former wife requested that two months of alimony be sent care of her boyfriend to a PO Box issued to boyfriend in Maine; alleging that former wife told husband to send alimony checks to her condo in Long Branch until it was sold because she was planning to move to Maine; former wife and boyfriend once lived together in the Long Branch condo; and husband received mail from former wife with a PO Box return address for a PO Box issued to boyfriend.

Former wife responded to the application and asserted that she was not cohabiting; that boyfriend lived in a separate residence; there was no economic benefit to her as a result of their relationship; that she was not planning to move to Maine as she had a business in New Jersey; and that she had only purchased a vacation home with boyfriend where they spend weekends or vacations.

The trial judge found that husband had failed to prove cohabitation and denied husband's application. He then appealed. The Appellate Court upheld the lower court's finding.

In order to have been successful on appeal, husband must prove that there is prima facie case of cohabitation before he is entitled to discovery and a plenary hearing. Where an Agreement provides for termination of alimony based upon cohabitation a court does not need to delve into the economics of the dependent spouse. However, the first hurdle is proving that cohabitation does in fact exist. If done, the supporting spouse need only show that the dependent spouse is involved in a marital-type relationship.

Having failed to prove the prerequisite cohabitation, husband's application failed.

As an aside, it can be difficult to prove cohabitation for the purpose of terminating alimony. Individuals who have termination clauses in their Agreements are often aware of those clauses and may be consciously planning their relationship so as to ensure that the alimony is not terminated.
 

EDITOR'S NOTE:  There were several unreported cases where the finding was that with facts like these, the alimony payor was, at least, entitled to a discovery and plenary hearing to determine economic benefit.  For whatever reason, the husband in this case was not so lucky.  ERIC S. SOLOTOFF
Tags: , , , , ,