It seems as though a wave of cohabitation cases has recently swept across the Appellate Division in New Jersey. And for good reason. While well-settled is the concept that a supported spouse’s cohabitation typically will constitute a change of circumstances sufficient to justify end of a supporting spouse’s alimony obligation, the nuances of the law can be quite involved. This can been seen from the Appellate Division’s February decision in the case of Wonderlin v. Wonderlin, on which Sandra Fava blogged. That holding came down to evidence of the times and frequency that an unrelated male came and went from a former wife’s home, which, the Appellate Division ruled, entitled a former husband to discovery on the issue of whether the wife was cohabitating.

While the comings and goings of an unrelated male can be one indicia of cohabitation, in the case of Okoshi-Wilson v. Wilson, the Appellate Division examined a different source to prove cohabitation: the wife’s earnings as compared to her expenditures. There, the husband moved for a termination of his alimony obligation on the basis of the wife’s cohabitation with an unrelated male.

It seemed, based on the proofs submitted, that the husband had always earned a significantly greater salary than the wife, with the wife only earning about $47,000 in 2008 after her alimony of $22,500 per year was considered, as compared to the husband’s $164,164 the year prior. Despite this fact, the wife was apparently living in a posh, three-bedroom Upper East Side apartment, which she clearly was unable to afford on her salary alone. As it turned out, also a tenant of the same apartment was an unrelated male by the name of Steven Macy. This revelation led to the husband’s application for a termination of his alimony obligations. During the hearing at the trial level, Okoshi admitted that she had been able to maintain her New York City residence, because she was Macy’s tenant, allegedly paying him only $135 per week in rent and household work such as watering the plants, purchasing food, and collecting the mail. She further testified that Macy and his daughter only stay at the apartment about five times per month. Okoshi had documents to support some of her assertions — a lease signed by her and Macy and receipts for rent she paid in cash. She denied any romantic involvement with Macy and said he does not support her in any way.

A review of Okoshi’s American Express statements told a different story, however. They showed that she charged $25,436.90 in 2008, an amount approximately equivalent to her total wages. Wilson suggested that the goods and services Okoshi acquired reflected a lifestyle inconsistent with her income and were indicative of the fact that she was receiving additional support from Macy. Specifically, the charges include: $2659.32 for airline tickets; expenditures indicative of travel to Las Vegas, including a stay at the Bellagio hotel; over $3000 in charges for a skin care and nutrition company; $320 spent at the Coach Store; and purchases from Whole Foods and Trader Joe’s.


The trial judge did not believe Okoshi’s testimony about her living arrangements, and he found she had concealed her address from Wilson to defeat his efforts to establish her cohabitation. In addition, the judge drew a negative inference based on Okoshi’s failure to call Macy and her daughter to testify. Based on the spending patterns reflected on Okoshi’s American Express bill, which the judge found to be inconsistent with that of a single mother forced to rent a bedroom in a New York City apartment, the judge concluded that Okoshi had "found alternate and substantial additional sources of income and/or support" and no longer required alimony. Okoshi appealed, stating that the finding of her cohabitation with Macy was unsupported by the record.


The Appellate Division began its analysis by examining the definition of cohabitation in the context of an alimony termination case. Namely, the Court stated:


Cohabitation is "a domestic relationship whereby two unmarried adults live as husband and wife." It is a "close and enduring" relationship that "requires more than a common residence, although that is an important factor." It is an "intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage"; these 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." Cohabitation is more than a "mere romantic, casual or social relationship" but has "stability, permanency and mutual interdependence."


Based on the above legal backdrop, despite the overwhelming evidence of economic interdependence that the husband portrayed at the trial level, the Appellate Division concluded the trial judge did not address the nature of the relationship between Okoshi and Macy under the above standards. Rather, the judge simply found that their relationship was not that of a tenant and landlord. Accordingly, the Appellate Division remanded the case for further proceedings to determine the nature of the relationship between Okoshi and Macy.


Thus, while a spouse’s earnings in comparison to their expenses is certainly relevant to the issue of cohabitation, it is but one piece of this very complicated and nuanced puzzle.