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