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Recently, the Appellate Division issued an unpublished decision in the matter of Adessa v. Adessa, A-2854-07T2, decided May 29, 2009, wherein husband filed a motion seeking to terminate his alimony obligation based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

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