What happens when a dependent spouse begins living with another partner? Well, in the recent unpublished decision of Hartelust v. Hartelust the Appellate Division reviewed this question. Docket No. A-2519-08T3, decided January 12, 2010. 

Plaintiff Nora Hartelust appealed from an August 1, 2008 Order that terminated Defendant Alexander Hartelust’s alimony obligation.   After twenty years of marriage the couple was divorced in January 2007. The judgment of divorce incorporated the property settlement agreement (PSA).   At the time, the couple had a fifteen year old child, Alexander was earning $60,000/year and Nora was earning $15,000 per year. The PSA stated that Alexander would pay $175 per week in child support, $220 per week in permanent alimony, and transfer his ownership in the marital home to Nora. The PSA did not address cohabitation.

In April of 2007, Alexander became aware that Nora was cohabitating in the former marital home with her boyfriend. Alexander immediately stopped paying alimony and in July 2007, three months later, filed a motion seeking termination of alimony.  After a plenary hearing where the parties, the boyfriend, and the couple’s son testified, the trial judge found that Nora was cohabitating with her boyfriend and was deriving an economic benefit. The judge ordered that Alexander stop paying alimony and awarded Alexander attorney’s fees. Nora appealed. On appeal the Appellate Division affirmed the termination of alimony because the trial judge had determined that based on credible testimony, Nora was cohabitating with her boyfriend and received an economic benefit from that cohabitation. The Appellate Division explained that once there is a prima facie showing of cohabitation, the burden of proof is shifted from the party seeking modification to the dependent spouse, who must show that he or she has not derived an economic benefit from the cohabitation. Nora could not overcome that burden.

Also on appeal was the award of attorney’s fees, which the Appellate Division reversed. The Appellate Division found that the judge failed to consider seven of the nine factors when determining if attorney’s fees were warranted. In this case the attorney failed to submit a Certification of Services, which impacted the Appellate Division’s ruling. In order for attorney’s fees to be ordered, an attorney must submit a certification or affidavit of the services they provided.

While this matter is unpublished and therefore not binding, given the law of this state the outcome exemplifies the way the law was meant to be interpreted. Recently, virtually this very same issue was faced by a client and although the spouse admitted to cohabitation, the trial judge did not find that our client had met his prima facie burden and therefore, would not order a plenary hearing. While disappointing, this case further supports our belief that our client was entitled to this hearing, at the very least.