We have written a lot about termination of alimony based upon cohabitation, both before the 2014 Amendment to the alimony statute making it easier, and after the Supreme Court’s decision in the Cardali case.

Typically, whether the Court has to apply the old law for pre-2014 divorces or the not so new anymore law, it’s usually a multi-step process before a court will terminate alimony. The first step is to file a motion providing proofs of cohabitation in order to show a prima facie case. The Supreme Court in Cardali reminded trial courts and practitioners alike that this should not be a heavy burden

The second step is discovery regarding the cohabitation as well as the finances, including any possible financial interdependence between the alimony recipient and proposed cohabitant. Both under the old law and the new law, intertwined finances, and/or one cohabitant supporting the other are relevant.

The third step would be a plenary hearing (trial) at which the trial court hears the evidence and determines whether alimony should continue or be terminated or suspended.

It is uncommon to see alimony terminated before getting to step 3. But that is exactly what happened in Winner v. Winner, an unreported (non-precedential) Appellate Division decision released on February 21, 2025.

In winner, the parties were divorced in 2011 and the husband was required to pay alimony, presumably permanent, because the marriage was longer than 20 year, but the decision isn’t clear. In July of 2022, husband filed a motion to terminate, suspend or modify alimony based upon cohabitation. In 2021, he hired a private investigator to perform a cohabitation investigation that seems to have formed the basis of his motion. In September 2022, the trial court found that the husband had met his prima facie burden and ordered the filing of Case Information Statements, discovery and a plenary hearing. The discovery was to be completed by November 30, 2022.

That’s when the fun begins. Wife sought to extend discovery which the court did, to March 1, 2023, however, the Order provided that if discovery was not completed, “… the court will consider sanctions, including but not limited to, adverse inferences, monetary sanctions, complete suppression of evidence, etc., as to the offending party.” Trial was scheduled for April 3, 2023.

Wife refused to answer discovery or file a CIS and repeatedly stated that she would not provide financial discovery in response to discovery demands or court orders. Rather, she filed numerous motions, including repeated motions to quash subpoenas.

On July 12, 2023, the trial court heard multiple motions and put an end to the games. At that hearing, the court granted husband’s motion to bar plaintiff’s opposition to terminate alimony. The basis of the decision was wife’s “…”intentional and material refusal to comply with discovery orders” pursuant to Rule 4:23-2.”” The court went on to find:

[P]laintiff . . . knowingly and willfully, deliberately violated the [c]ourt’s orders for discovery, . . . engaged in delay tactics repeatedly and frivolously . . . took it upon herself to impede [discovery] through a frivolous filing . . . . The [c]ourt . . . warned the parties that there would be sanctions. And while [the court] is absolutely loathe[] to do so, [the court] see[s] no
alternative. If [the court] give[s] any further time, . . . there[ is] not one shred of evidence that gives this [c]ourt any level of confidence that [plaintiff] would comply. The [c]ourt hereby
grants . . . defendant’s application to dismiss . . . plaintiff’s opposition and the [c]ourt will
proceed in summary fashion as to the alimony application predicated on cohabitation.

The Court then found that husband proved cohabitation as well as financial entanglements between the wife and the alleged cohabitant based on the limited financial information he was able to obtain via subpoenas. The court specifically found commingling of funds for various purposes. The Court also notes that wife received a substantial inheritance that she failed to fully disclose.

Wife appealed and the Appellate Division affirmed finding that:

The court’s findings plaintiff knowingly, willfully, and deliberately refused to provide discovery, violated the court’s discovery orders, and engaged in delay tactics by repeatedly filing frivolous motions are amply supported by substantial evidence in the record. The sanction imposed was “just and reasonable in the circumstances.” (internal citation omitted) We do not perceive any basis to disturb the court’s decision.

As to the trial court’s finding of cohabitation, the Appellate Division held:

The court’s determination plaintiff was cohabitating with Hughes is supported by substantial, credible evidence the record, including defendant’s cohabitation investigation and evidence they were commingling their finances for several years. The court’s finding of changed financial circumstances is also supported by substantial, credible evidence in the record. Based on the limited financial information defendant was able to uncover, plaintiff owns two homes that are not encumbered by mortgages and her bank records evidence large
amounts of money being deposited monthly with a substantial amount coming directly from Hughes. There is no basis for us to disturb the court’s finding of a substantial change in financial circumstances warranting the termination of alimony.

The takeaway from this case is this. The saying “________ around and find out” comes to mind. Plaintiff here brazenly defied Orders. Quite frankly, it could have been a lot worse. That said, this case shows that in certain situations, alimony can be terminated without a plenary hearing.

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    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 esolotoff@foxrothschild.com.