If you have been through the process of divorce and have a spousal support obligation to your ex, you should have been advised that aside from explicitly stating an end date for your spousal support obligation, there are few ways to end the payments.  Death is certainly one of them.  If your ex remarries that is a second.  What happens when your ex is living with someone else?

The issue of cohabitation has been dealt with by the courts in NJ in case law since the 1970’s.  The issue in and of itself is not new.  How the courts have dealt with allowing parties to prove the issue has been somewhat fuzzy, until a recent unpublished Appellate Division decision provided what seems like some much needed, long time coming, guidance.  If you haven’t already, take a look at Wonderlin v. Wonderlin .

So what’s the guidance- well let’s start with the basic principles cases like Konzelman v. Konzelman, 158 NJ 185 (1999) and Gayet v. Gayet, 92 NJ 149 (1983) have given us.  In Gayet, the court told us we need to look at whether the cohabitating couple bears the “generic character of a family unit as a relatively permanent household”.  In Konzelman, the court told us that the relationship in question needed to show signs of “stability, permanency and mutual interdependence”.  The proof required is that “of an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage” which include but are not limited to “living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple’s social and family circle”.  The problem for litigant’s and practitioners alike has been, how do you prove such intimate details at first blush so as to convince a court that you have met your burden of proof and now the alleged cohabitating ex must produce evidence to show there is no economic benefit of the relationship and the spousal support is still needed?

As a practitioner I have been on both sides of the case where there is an allegation that an ex who is receiving spousal support is cohabitating.  The usual tactics have been employed, including but not limited to, private investigators, photos of the couple together at social functions, coming in and out of their residence on a daily basis, perhaps a morning routine of dog walking, etc.  Sometimes, these tactics are successful and there is enough for a judge to raise an eyebrow and want to delve deeper into the matter.  Other times, there is not – motion denied, no relief granted, case closed (for now).

Wonderlin has seemingly changed that.  In this case, the facts were that the paying spouse claimed his ex was cohabitating with another man and he provided certifications and information gathered by a private investigator suggesting this intimate relationship not only with his ex but with the children of the marriage.  The evidence was consistent with the claim of cohabitation but wasn’t enough for the trial court.  On appeal, the Appellate Court reversed and set forth the following principle:

“It is the unlikely case in which a former spouse will have access to bank accounts or insight into whether the alleged cohabitors are sharing expenses and household chores.  All that was available to an outsider here….is alone insufficient to warrant a finding of cohabitation….But so long as this type of evidence suggests cohabitation, the former spouse should be entitled to discovery into those other areas that are critical to a finding of cohabitation.  Without discovery, a former spouse is ordinarily incapable of showing the intertwining of offenses or evidence of how the couple is viewed socially”.

The court went on to say that this doesn’t necessarily require an evidentiary hearing.  The parties can argue that whatever discovery does or doesn’t disclose warrants a disposition of the cohabitation issue as a matter of law as set forth under the principles in Konzelman and Gayet.  The need for an evidentiary hearing can’t be determined until discovery is concluded.

The clear guidance provided in Wonderlin enables practitioners and litigant’s alike to know their responsibilities under the law to get to the next step of the cohabitation puzzle.  It solves a common problem litigant’s and practitioners have been facing where oftentimes its an impossibility to obtain the information necessary to meet the burden of proof set forth in Konzelman and Gayet without being permitted to conduct some discovery.  Knowing that discovery may be the next step may also facilitate more settlements of these cohabitation cases, where one party knows they face the risk of being exposed.  On the other hand, it may provide the warning to those who are cohabitating of how they must be extra careful in the personal/financial dealings of their relationship if they want to keep their spousal support or at least not see it get reduced.