Six years, nine months and 7 days following the enactment of New Jersey’s amended alimony statute’s cohabitation provision on September 10, 2014 (N.J.S.A. 2A:32-23n) the New Jersey Appellate Division provided long awaited and much needed guidance on what a movant must now present to the trial court to demonstrate a prima facie case of cohabitation warranting discovery and ultimately a plenary hearing.
Back on September 13, 2019 as noted by Eric S. Solotoff, Esq. blogging on the case Landau v. Landau the Appellate Division reversed the trial court after granting discovery as the movant failed to make a showing of changed circumstances based upon cohabitation. In this case, the trial court held although the husband fell short in making a prima facie showing of cohabitation, the husband was permitted to conduct discovery to attempt to make a prima facie case of cohabitation. The Appellate Division initially stayed and then ultimately reversed the trial court’s Order permitting discovery stating:
There is no question but that a prima facie showing of cohabitation can be difficult to establish, see Konzelman, 158 N.J. at 191-92 (describing the seven days a week, 127 days of surveillance of Mrs. Konzelman’s residence), precisely for the reason the trial court identified, that the readily available evidence is often “consistent with either a dating relationship or a cohabitation relationship.” But that is hardly a new problem and it cannot justify the invasion of defendant’s privacy represented by the order entered here. We are confident the Lepis paradigm requiring the party seeking modification to establish “[a] prima facie showing of changed circumstances . . . before a court will order discovery of an ex-spouse’s financial status,” 83 N.J. at 157, continues to strike a fair and workable balance between the parties’ competing interests, which was not altered by the 2014 amendments to the alimony statute.
The Appellate Division’s decision in Landau, made it clear that a movant could not use a back-door approach to make a prima facie showing of cohabitation by requesting a suspension or termination of alimony due to cohabitation, or in the alternative, requesting to conduct discovery in an attempt to carry his or her burden. Unfortunately, the court in Landau did not take the next step and define what exactly constitutes a prima facie case of cohabitation despite acknowledging the difficulty a movant faces in successfully making such an application.
On April 23, 2020, approximately seven months later, the Appellate Division decided the case Wajda v. Wajda, an unreported (non-precedential) opinion addressing this same issue of what a movant must provide to the trial court in order to make a prima facie showing of cohabitation. In this case, the Appellate Division in Wajda reversed the trial court’s decision finding the movant did not make a prima facie showing of cohabitation despite the movants undisputed Certification that the alleged cohabitant stayed overnight at the wife’s home nearly every night from October 5 through December 12, 2018, the alleged cohabitant often stayed in the wife’s home without the wife present, often used the wife’s car, handled chores around the wife’s house as if it were his and housed his two dogs in the wife’s house. While the Appellate Division disagreed with the husband’s position that he successfully demonstrated cohabitation through his pleadings filed with the court as the wife was in “a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage” pursuant to N.J.S.A. 2A:34-23(n), the court did agree he made a sufficient showing to warrant further discovery. Although this case yet another opportunity for the court to clarify what exactly a movant must provide to establish a prima facie showing of cohabitation, the court did not address this long standing issue – that is until June 17, 2021.
Finally, the Appellate Division in Temple v. Temple, currently an unreported (non-precedential) opinion released on June 17, 2021, cleared up any confusion how the trial court when presented with an application for cohabitation must define the elements necessary to make a prima facie case of cohabitation and further explained that the court’s decision in Landau as a guide for this analysis is limited.
In Temple, the parties were married in 1986 and were divorced in 2004. Pursuant to their agreement, the husband was obligated to pay $5,200 per month in permanent alimony. In July 2020, sixteen years later, the husband filed an application to terminate his alimony obligation alleging the ex-wife was either remarried or was cohabitating with a man she was in a relationship for at least fourteen years. The parties agreement provided cohabitation as a reason for the husband’s termination or modification of his alimony obligation.
Relying heavily on Landau, the court denied the husband’s application finding he did not make a prima facie showing of cohabitation notwithstanding the husband’s application supported by an abundance of evidence whether his ex-wife had re-married but also whether she was or have been cohabitating pursuant to N.J.S.A. 2A:34-23(n), including social media posts confirming their long term relationship, information from family members, how she and her long term boyfriend presented themselves to the public, that they were or had lived together during their ongoing fourteen year relationship, the alleged cohabitants car regularly parked outside the former marital home and the “scrubbing” of their social media accounts of any information regarding their continuing relationship.
The Appellate Division reversed the trial court and remanded for discovery and an evidentiary hearing finding the trial court’s reliance on Landau was misplaced. Moreover, the court acknowledged that while a movant must present a prima facie case of cohabitation before the court may order discovery, the court in Landau did not define what exactly constitutes a prima facie case of cohabitation. The court also found that the trial court incorrectly weighed the parties’ Certifications and without a hearing determined that the wife’s account of the facts set forth in the husband’s application were true when the proper course should have been to entitle the husband to an assumption of the truth, the benefit of all reasonable inferences and allow for discovery when presented with Certifications that create a genuine dispute about the material facts.
While the Appellate Division confirmed the husband in Temple was required to make a prima facie case of cohabitation (which until now has yet to be defined), he was not required to present evidence favorable on all six statutory factors in N.J.S.A. 2A:34-23(n):
(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.
Fortunately, the Appellate Division provided some well needed clarity as far as what a movant must show in order to clear the prima facie hurdle for a case of cohabitation allowing for discovery and a hearing. The court in Temple held:
[W]e reject the argument that evidence of all these circumstances must be presented for a movant to establish a prima facie case of cohabitation. The statute contains a seventh item, which allows a court’s consideration of “[a]ll other relevant evidence,” N.J.S.A. 2A:34-23(n)(7), thereby demonstrating the statute does not contain the alpha and omega of what ultimately persuade a court that a support spouse is cohabiting.
Reasonably so, the court also found that it is unfair to the movant if he or she is required to present evidence on all six factors before establishing a prima facie case of cohabitation. For example, how is a movant able to obtain evidence of a former spouse’s “intertwined finances” to show the sharing of “living expenses” prior to completion of discovery? Other than running a “trash audit”, the answer is he or she will likely be unable to obtain this information to present to a court in an application for cohabitation. Requiring the movant to run down the six factors to make a threshold prima facie showing of cohabitation is, as the Appellate Division aptly stated, “…will be as rare as a unicorn.” All a movant must demonstrate through evidence is that the supported spouse and another are in a mutually supportive, intimate personal relationship in which they have undertaken duties and privileges that are commonly associated with marriage or civil union.
Within the last few days, a written request was made by the American Academy of Matrimonial Lawyers (“AAML”) to the Administrative Office of the Courts, Committee on Opinions to publish the Appellate Division’s decision in Temple in efforts to avoid any future misapplications of Landau and hopefully create on some level of consistency in future cohabitation cases.
Joseph M. “Bud” Murphy is a member of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer, Bud is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Bud at (973) 548-3353 , or JMMurphy@foxrothschild.com.