For decades, cohabitation was grounds to at least get a review of alimony. When the alimony statute was amended in 2014, almost 8 years ago, the revisions made it easier for alimony payors to get out from under their alimony obligation (for divorces that occurred post-statute) than in the past. Specifically, the statute provided that upon a showing a cohabitation, alimony could be terminated or suspended. That said, time and again, cases found their way to the Appellate Division because trial court judges kept getting it wrong.
As noted in my blog on the Landau case, one trial judge found that the ex-husband did not make a prima facie showing of cohabitation, but ordered discovery anyway to allow the husband to try to prove it. This decision was reversed by the Appellate Division. In another case, the trial court denied a motion to terminate alimony based upon cohabitation, though at least 2 months of cohabitation was shown. The Appellate Division reversed finding that at the very least, the ex-husband was entitled to discovery. One would think that after the Appellate Division decided the Temple case last year in a reported decision, which provided guidance to trial court and specifically held that not all elements of cohabitation need to be proven to show a prima facie case, particularly intertwined finances which the moving party would likely never have when making the motion, that things would have gotten better. Yet anecdotally and otherwise, we still have seem meritorious motions regarding cohabitation to be denied.
That was the case in the Smiley v. Sheedy case decided by the Appellate Division (non-precedential) on May 11, 2022. In that case, the parties divorced in 2018. The parties’ MSA provided for termination of alimony in the event that the wife was cohabiting as defined by the statute. At some point post-judgement, the husband filed a motion seeking to terminate alimony providing evidence that the wife and her paramour had been exclusively dating since 2018, that the paramour’s car was parked at the ex-wife’s home for about 4 months, that the paramour was at the home when the ex-wife was at work, proof that they vacation together, posts on social media that the hold themselves out as a couple and spend holidays together, as well as some publication from her employer that she “relocated to South Jersey to “join her boyfriend.””
Despite the precedent set forth in the statute and Temple, the trial court did not address all six factors of the statute and focused almost exclusively on actual cohabitation,2 although it acknowledged cohabitation is no longer necessary in order to demonstrate an exclusive, committed relationship tantamount to marriage. The trial judge found although the ex-wife had cohabited with the paramour for a period of time in the past, she was not presently cohabiting and did not intend to in the future. Accordingly, the motion was denied.
The Appellate Division reversed and found that the ex-husband, did, in fact, make a prima facie showing of cohabitation. The Court noted the factors set forth in the statute, as follows;
1) Intertwined finances such as bank accounts and other joint holdings or liabilities;
2) Sharing or a joint responsibility for living expenses;
3) Recognition of the relationship in the couple’s social and family circle;
4) Living together, with 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 R.S. 25:1-5; and
7) All other relevant evidence.
In citing Temple, the Appellate Division recounted:
In the recent case of Temple v. Temple, 468 N.J. Super. 364 (App. Div. 2021) we addressed the statutory factors required to make a prima facie case of cohabitation. We specifically found if “a movant must check off all six boxes to meet the burden of presenting a prima facie case, a finding of cohabitation will be as rare as a unicorn. This cannot be what the Legislature had in mind when it codified the meaning of cohabitation . . . .” Id. at 370. “[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 does not contain the alpha and omega of what ultimately persuades a court that a supported spouse is cohabitating.” Ibid.
We also recognized the difficulty movant has in establishing prima facie evidence of some of the statutory factors, particularly those bearing upon the payee spouse’s finances:
People tend to treat financial information as confidential and do not normally volunteer it to others, let alone former spouses obligated to pay them alimony. Information that would be helpful in demonstrating intertwined finances is also not available from financial institutions on a stranger’s request. Demonstrating that a former spouse and a paramour are “sharing” or
bearing “joint responsibility” for their living expenses is also something a movant is not likely to be able to
present without a right to compulsory discovery. Absent an opponent’s voluntary turnover, a movant will never be able to offer evidence about the financial aspects referred to in N.J.S.A. 2A:34-23(n).
Accordingly, the court noted that given the lack of financial information available to the movant, a trial court must examine the non-financial factors carefully to determine whether a prima facie case exists to warrant discovery. Here, the Appellate Division noted that the husband made a prima facie case to warrant discovery, by showing:
… evidence demonstrates a six-year dating relationship that commenced prior to the divorce being finalized, a private investigator’s surveillance report, an admission from wife (sic) that she and paramour (sic) physically cohabited for a period of time although they are not physically cohabiting presently, social media posts demonstrating they hold themselves out as a couple and share holidays, and an announcement regarding the motive behind wife’s (sic) relocation to South Jersey.
The Appellate Division also noted that the trial court used the wrong evidentiary standard by weighing the response of the ex-wife noting:
A movant in a cohabitation motion solely bears the burden of proving the initial prima facie case. “When presented with
competing certifications that create a genuine dispute about material facts, a judge is not permitted to resolve the dispute on the papers; the judge must allow for discovery and if, after discovery, the material facts remain in dispute, conduct an evidentiary hearing.” Once there is a rebuttable presumption of changed circumstances from a prima facie case of cohabitation, the burden of proof, which is ordinarily on the party seeking relief, shifts to the non-movant at the plenary hearing to come forward with proof that cohabitation is not occurring. See Ozolins v. Ozolins, 308 N.J. Super. 243, 249-50 (App. Div. 1998).
Despite the statute and the clear wrong, the trial judge got it wrong anyway, necessitating an appeal. Maybe judges think people are entitled to the benefit of their alimony bargain, but the law surrounding cohabitation remains pretty clear these days, especially since Temple. Maybe this case will be a wake up call.
Eric 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 firstname.lastname@example.org.