If a dependent spouse starts living with an unrelated adult after the divorce, is that enough to terminate the supporting spouse’s alimony obligation? While the answer to that question is not as simple as one would think, it is an issue that often arises, especially in a troubled economy where many supporting spouses are having a more difficult time meeting their payment obligations.

In New Jersey, “cohabitation” is considered a “changed circumstance” allowing the supporting spouse to seek an alimony reduction by first obtaining discovery and then demonstrating that the dependent spouse’s needs have either decreased because the third person is contributing to the dependent spouse’s support or is effectively subsidizing the dependent spouse at the supporting spouse’s expense. What, however, is meant by cohabitation? Courts in this state have concluded that it does not merely mean a so-called dating relationship, but, rather, involves a relationship described as having the “generic character of a family unit as a relatively permanent household” where there exists an “intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage.” What does that mean? Since each situation is different, a court will look at a given set of facts for the marital-type relationship including, but not limited to, a joint residence, joint/connected finances, shared living expenses and performance of household tasks, and the relationship is held out in this way to the community, social groups, and family.

Once the supporting spouse establishes the changed circumstance of cohabitation, the burden of proof then shifts to the dependent spouse to prove that he or she has derived no economic benefit from proven cohabitation. The reason that the burden shift is simple – the dependent spouse has greater access to relevant information than does the supporting spouse to disprove a cohabitation benefit.

It was this burden shift that was at issue in the Appellate Division’s recent opinion in Kerridge v. Kerridge. The settlement agreement between the parties there provided that alimony would terminate should, among other things, the wife cohabitate with an unrelated adult male. The husband happened to stumble across an article on the Internet involving his children suggesting that the wife had entered into the sort of intimate relationship contemplated by the cohabitation case law. 

The husband subsequently filed a motion to modify his alimony obligation. The trial judge found that the wife lived together with an unrelated adult male in the same residence for almost a decade, he provided labor around the house for free in lieu of rent or taking care of the wife directly, there was no proof that she received any financial support from him, there was no intertwining of finances or expenses, and there was no proof of a sexual relationship. In fact, the only evidence that the trial judge essentially had to go on was the online article, which the court deemed to establish an intimate relationship between the wife and the third party, and that the labor he provided was almost the value equivalent of what the husband was paying in alimony.

Based on these findings, the trial court concluded that the husband proved cohabitation and then ordered that a discovery period commence, followed by a hearing. The burden, as a result, shifted to the wife to prove a lack of financial benefit. The shift was especially critical here because she was living in California where she truly had an advantage over the husband when it came to accessing relevant information/evidence. The trial court, however, found that the wife failed to meet her burden because she failed to submit to or comply with the discovery process. The wife claimed that she was too ill to be involved, but then would not allow the court to consider any evidence as to her medical condition other than her own sworn statement and unsworn statements from her doctor, with whom the wife would not waive the patient-physician privilege. Neither the wife nor the cohabitant appeared for depositions and generally failed to comply. As a result, the trial judge applied adverse inferences against the wife, especially since she was preventing any form of cross-examination on her own certified statements, and granted the husband’s motion.

In affirming the trial court’s findings and conclusions, the Appellate Division found that the trial judge acted appropriately in drawing adverse inferences regarding the wife’s medical condition, even though she claimed the protection of the patient-physician privilege, since it was she who made her medical condition an issue and then refused to abide by the court’s efforts to determine the impact of such condition on her ability to comply with discovery. The Appellate Division also affirmed the trial court’s taking of adverse inferences against the wife for her failure to testify at the hearing, as well as her failure to offer the testimony of the cohabitant, since she had the ability to do so but refused. As a result, the Appellate Division ultimately concluded that any lack of evidence from the wife was her own fault and the husband would not be penalized or denied as a result.