As we have said before, the 2014 amendments to the alimony statute allegedly made it easier to terminate alimony if the recipient of the alimony was cohabiting.  The statute now provides that alimony may be terminated or suspended if cohabitation was proven.   The statute made clear that the parties didn’t even have to live together full time for their to be cohabitation and provided indicia of cohabitation that had been culled from prior case law that the court must consider:

(1) Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
(2) Sharing or joint responsibility for living expenses;
(3) Recognition of the relationship in the couple’s social and family circle;
(4) Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive
intimate personal relationship;
(5) Sharing household chores;
(6) Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of
subsection h. of [N.J.S.A.] 25:1-5; and
(7) All other relevant evidence.

Factors one and two are usually hard to prove, at least on an initial application, because one does not typically have access to the other person’s finance’s, absent an occasional lucky find in a “trash audit” conducted by a private investigator.  Moreover, like any other modification application, there is a two step process.  First, you need to make a prima facie showing that cohabitation exists in order to even get two the second step which is discovery, and then a hearing.   As noted in my blog on the Landau case from last year,  if you cannot make a prima facie showing, then you don’t ever get the discovery to bootstrap or prove the allegation of cohabitation.

Typically, you see these motions fail because there is not enough evidence, like in Landau.  You may have a few overnights proven by a private investigator, but not enough in a row, or the surveillance wasn’t for long enough.  Often, you see insufficient surveillance coupled with nominal anecdotal evidence, social media posts and the like.  But what happens when the the PI shows that the alleged cohabitation took place for two months straight.  Surely that would be enough, right?  Well, in the case of Wajda v. Wajda, an unreported (non-precedential) opinion released on April 23, 2020, the trial court said no.  However, the Appellate Division disagreed and said that the payor made a prima facie case.

In Wajda, the parties were divorced in February 2018.  Pursuant to their agreement, the husband was obligated pay limited duration alimony of $425 per week for twelve years with the alimony to
terminate in the event of the wife’s “remarriage or cohabitation” with another person.  In December 2018, the husband sought to terminate alimony based upon cohabitation or in the alternative, get discovery if the wife denied cohabitation.  Given Landau, the alternatively relief was perhaps inartfully drafted.  That said, motion was supported by 148 page private investigator report essentially provide that the alleged cohabitant stayed overnight at the wife’s home nearly every night from October 5 through December 12, 2018.   Moreover,  the report also indicated that alleged cohabitant remained in the home when the wife was not present and when the parties’ daughter was there, kept his car there, often drove the wife’s car, did some household chores, and kept his two dogs there.   In fact, the overnights and these facts were really not in dispute. Rather, the wife provided Certifications and some documents showing that the cohabitant maintained another home somewhere else and also, that he was at her home to convalesce from a surgery.  As note above, the trial judge denied the husband’s motion finding that he did not even make a prima facie showing.

As also noted above, the Appellate Division disagreed, holding:

In this case, it was undisputed that A.S. stayed overnight in defendant’s home nearly every night for almost two months. He kept his dogs there, as well as his car. The bank records defendant furnished demonstrated that A.S. was purchasing items and transacting bank business in the same town where defendant resided. A.S. remained in the home even when defendant left. The judge found that A.S. did not reside with defendant, but he did not find that A.S. resided elsewhere. The investigative report also demonstrated that A.S. and
defendant shared some social media connections. Certainly, without any discovery, plaintiff could not demonstrate that defendant and A.S. shared expenses or intertwined their finances.

We disagree with plaintiff’s assertion that he demonstrated cohabitation — that defendant and A.S. were in “a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage[,]” N.J.S.A. 2A:34-23(n) — based solely on the documents filed by both sides. The question is whether plaintiff made a sufficient showing to warrant further discovery. We think he did.

We, therefore, remand the matter to the Family Part for further proceedings. Recognizing in the first instance that plaintiff is entitled to some discovery.  we leave the scope of the discovery to the sound discretion of the remand judge, and do not necessarily require at this point that he or she order a plenary hearing. Plaintiff or defendant are certainly free to make such a request after discovery is completed. Additionally, “[i]n an abundance of caution, we direct that this matter be remanded to a different judge . . . to avoid the appearance of bias or prejudice based upon the judge’s prior involvement[.]” Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005).

As stated before, maybe the request in the motion was imprecise.  Maybe the motion seemed too soon for the trial judge as it was made less than 10 months after the divorce.  Who knows why the motion was initially denied given the undisputed facts here.  But while not precedential, this case is a good barometer of what is needed to at least get discovery.

Eric S. Solotoff, Partner, Fox Rothschild LLPEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or