Despite the Appellate Division decision in the Temple case in 2021 that seemingly made it easier to show a prima facie case of cohabitation necessary to get discovery and perhaps terminate or suspend alimony, as I blogged on last years, trial court continued to get these cases wrong and deny discovery. In Temple, the Appellate DIvision noted:

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: …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).

Though pretty clear that not every possible aspect of cohabitation had to be included in a motion, motions were denied. However, on August 8, 2023, the Supreme Court decided the case of Cardali v. Cardali which clarified the standard making it easier to make a prima facie showing of cohabitation necessary to get discovery. Specifically, the court held that a movant need not present evidence on all of the cohabitation factors set forth in Konzelman (the cohabitation case that applies to pre-2014 alimony areements, or in N.J.S.A. 2A:34-23(n) (for cases in which the agreement was executed after the 2014 statute’s enactment, in order to make a prima facie showing. Rather, if the movant’s certification addresses some of the relevant factors and is supported by competent evidence, and if that evidence would warrant a finding of cohabitation if unrebutted, the trial court should grant limited discovery tailored to the issues contested in the motion, subject to any protective
order necessary to safeguard confidential information.

Fortunately, even though Cardali dealt with a pre-statute Agreement, the decision addresses both pr and post statute matters, essentially creating one overarching standard of what constitutes prima facie even though the ultimate standard of review and the remedy may be different.

In Cardali, while the movant showed indicia of cohabitation, he was unable to show evidence of any financial relationship between the plaintiff and alleged cohabitant. Accordingly, the trial court denied the motion. The Supreme Court noted at the outset that they did not view either the case law or the statute to “… require evidence of a financial relationship between the spouse or civil union partner receiving alimony and the other person as a prerequisite to discovery; as a practical matter, such a
showing may be impossible without discovery
” (Emphasis added). This is pretty logical and basically the part of the holding in Temple that was largely being ignored.

However, in Cardali, the Supreme Court ruled that as a policy, “…the mandate that a movant present a prima facie showing in order to obtain discovery is not intended to impose a high bar.” (Emphasis added). In fact, the Court reiterated the definition of prima facia as “evidence that, if unrebutted, would sustain a judgment in the proponent’s favor.”

Moreover, as noted in prior cases, the ability to show all facts, particularly intertwined finances, is not necessary, and in most cases, not possible. In fact, the Court held:

Indeed, any such requirement would impose an unfair burden on a movant at the preliminary stage. Absent discovery, a movant is unlikely to have access to the financial records and other documents relevant to Konzelman’s financial factors — “intertwined finances such as joint bank accounts” and “sharing living expenses” — or their statutory counterparts, N.J.S.A. 2A:34-23(n)(1) and (n)(2).

Once a prima facie case is made and discovery is ordered, it is not meant to be a open ended fishing expedition. Rather, the Court held that:

In fashioning its discovery order, the trial court should take appropriate steps to safeguard the privacy of the spouse or civil union partner receiving alimony and the individual with whom that person is alleged to be cohabiting. Those steps may include, but are not limited to limited to, constraints on the discovery to be provided to the movant and protective orders limiting access to the information subject to discovery.

The Court then noted that after discovery, the procedure would be for the parties to submit supplemental certifications and if material hours remain in dispute, a plenary hearing should be conducted.

While I doubt that this decision alone will create a race to the courthouse, it is good to see that there are finally standards set by the Supreme Court so that wildly different results do not continue to occur from courtroom to courtroom.

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Department 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