Archives: cohabitation

As regular readers of this blog may know, cohabitation has been a hot topic of discussion in recent months with several new cases addressing the subject within and beyond the context of the amended alimony law.  With new case law to consume, one question remains constant – how does a payor spouse fulfill his or her initial burden of proving cohabitation so as to justify a period of discovery and a future hearing as to how and whether alimony should be modified (or suspended, or terminated, etc.).

threes company

In Robitzski v. Robitzki, another recently issued cohabitation decision from the Appellate Division, the Court affirmed the lower court’s findings that the ex-husband/payor spouse failed to present sufficient evidence of a prima facie claim of cohabitation.  Here are the facts that you need to know:

  • The parties were divorced in 2004.  The property settlement agreement required that the ex-husband pay the ex-wife $2,500 in monthly permanent alimony.
  • The agreement also provided that alimony “shall be modified or terminated pursuant to New Jersey statutes and case law” in the event it was proven that the ex-wife was cohabiting with another.  The PSA did not define cohabitation, nor did it specify whether applicable “New Jersey statutes and case law” to be analyzed in such a claim would be those existing at the time of the divorce or those existing if and when the ex-husband filed a motion to address the issue.
  • From the time of the divorce through the subject motion practice, the ex-wife admittedly maintained a lengthy relationship with a significant other.
  • The ex-husband filed his motion after the alimony law was amended in late 2014.  He claimed that the parties were cohabiting under the amended law.
  • The ex-wife cross-moved for a declaration that the 2014 amendments did not apply to the alimony obligation at issue.
  • In support of his motion, wherein the ex-husband claimed the ex-wife and significant other were interdependent upon each other, he claimed that they held themselves out as the “equivalent” of spouses, and provided various items posted publicly on Facebook by the significant other containing photos and commentary of various family and social activities that the significant other engaged in with the ex-wife and her children.  The children referred to the significant other as “Pap Thom.”
  • In opposing the motion, the ex-wife certified that the significant other only spent approximately 100 nights out of the year overnight with her, and they maintained separate finances and assets.  She provided copies of bank statements and bills for 2013 and most of 2014 showing the ex-wife paid her bills from her bank account balances, and that there were no deposits from any unaccounted for sources.
  • The trial judge denied the ex-husband’s motion, finding that he failed to provide proof of financial interdependency, and the court did not consider the Facebook postings (which the judge deemed inadmissible hearsay and substantially unauthenticated).  The judge also denied application of the amended law to the present matter.
  • Notably, however, limited discovery was granted ordering the significant other to provide a certification addressing his independent living arrangements – including the length of his lease or whether he owns the home, whether he and the ex-wife are co-owners or co-tenants, and whether he lives alone and how he pays for his current living arrangements.  The judge also ordered the ex-wife to provide an accounting of her household expenses, including how such expenses were paid for in 2012.

In addressing whether the amended law or pre-amended law applied, the court declined to resolve the issue for multiple reasons including that the settlement agreement language was ambiguous as to what law should apply.  In language that practitioners thirst for, even if an unreported (not precedential) decision, the Court notably provided:

          We recognize that the new statute eliminates the modification of alimony as a remedial alternative to termination or suspension upon a finding of cohabitation.

This language will surely provide some degree of guidance, although it is not likely the end of what we will hear about whether modification can still occur.

Ultimately, the court held that whether the new or old law applied, the ex-husband still failed to fulfill his initial burden.  The reasoning was as follows:

  • The ex-wife attested to spending essentially a weekend of overnights each week with the significant other – “far less than the majority of days of the year.”  In so doing, the court noted:

          Although we do not treat the frequency of overnights as a dispositive “litmus test” for cohabitation, (and are mindful that subsection (n) of the new statute, if it applied, expressly disallows such per se reasoning) their infrequency here is certainly a significant consideration that bolsters the trial court’s conclusion that a prima facie case has not been presented.

  • The Court acknowledged that the Facebook postings reflected that “he and the ex-wife take part with one another in a variety of social and family activities, go on vacations together, and attend graduation ceremonies, family gatherings and other such events together.”  The Court noted, however, the postings – even had they been considered by the trial court – were not enough.
  • The Court, added, however, “Even so, the present record lacks any evidence that the couple’s finances are intertwined or that the ex-wife is financially dependent upon the significant other.”  No proof of joint bank accounts or other joint asset holdings or liabilities.  No proof of shared living expenses.  No proof of any enforceable promise of support.  Little proof of shared household chores with “the exception of occasional snow removal”.  Notable, however, is the level of potential difficulty in the ex-husband establishing financial inter-dependency on his initial motion without discovery beyond the limited documents provided by the ex-wife.
  • Concluding its opinion, the Court commented that the ex-husband could make a future application with supplemental proofs that the couple resides together more frequently, or that their lives and finances are “actually more intertwined than what the present record suggest[ed].

Robitzski presents an interesting dilemma for practitioners and litigants looking to fulfill the initial burden of proof associated with a cohabitation claim.  How much is enough?  What is enough?  Every judge will look at the case differently.  Each case has its own set of facts where one component may weigh more heavily than another.  Only time will tell if a valid claim has been raised.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

*image courtesy of Google free images.

Suffice it to say, the issue of cohabitation under the amended alimony statute has been a hot topic of late in New Jersey family law. With several recent notable seminars on the topic, and two recently issued Appellate Division decisions (one published and the other unpublished) addressing when the amended law applies, practitioners and potential litigants hungrily consume these new cases looking for any morsel of guidance on how the statutory language will work.

Back when the law originally passed, I wrote an article for the New Jersey Law Journal analyzing cohabitation law past, present and future. A year and a half later, I am not only unable to confirm how a trial judge would apply the new statute, but if the discussions from each of those recent seminars are any indication, different judges may and will likely apply the statute very differently.  In other words, some trial judges may favor applying the pre-amendment legal analysis, some may strictly apply the new statutory language, and some may even implement some sort of combination of the two.

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Thus, as a very strong introductory caveat – We have no idea how the new will be applied given what we have heard judges say about it, and the fact that there is no law to guide us.  Now, with that being said…

Just to briefly refresh, what did the old law say? Well, cohabitation was described by the Supreme Court of New Jersey as:

  • An “intimate,” “close and enduring” relationship that requires “more than a common residence” or mere sexual liaison. The relationship “bears the generic character of a family unit as a relatively permanent household,” is “serious and lasting,” and reflects the “stability, permanency and mutual interdependence” of a single household.
  • It involves conduct whereby “the couple has undertaken duties and privileges that are commonly associated with marriage.”

Indicia may include, but is not limited to, long-term intimate or romantic involvement; living together, intertwined finances such as joint bank accounts, shared living expenses and household chores, and recognition of the relationship in the couple’s social and family circle.  The so-called “economic benefits” test would come into play after the payor made an initial showing of cohabitation, at which time the court would determine if the third party contributed to the dependent spouse’s support, or if the third party resided in the dependent spouse’s home without contributing anything to household expenses.

Now what does the new law have to say? The law defines cohabitation as involving a “mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.” A trial judge presented with a cohabitation allegation is required to 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 R.S. 25:1-5; and – of course, since this is family law that we are dealing with – (7) All other relevant evidence. So we now know that, at the very least – under the amended law – cohabitation does not require the couple to live together on a full time basis, which was unresolved pre-amendment.

Also to clarify what I indicated earlier, some trial judges have suggested that because the family part is one tasked with imparting an equitable result, they may still apply the economic benefits test and potentially modify – rather than suspend or terminate as the statute says – an existing alimony obligation. Notably, as I wrote for the Law Journal, those amended portions of the law addressing an alimony change in the event of the payer’s retirement or down income use the word modify as a possible option, but that word is nowhere to be found in the cohabitation section. Was that deliberate, favoring the notion that the law is more payor friendly, or was it unintentional and not meant to wipe away the old law?  We do not yet know the answer.  Also notable is how a recent case addressing the retirement language section of the amended statute relied upon statutory interpretation and construction, rather than a broader interpretation that perhaps some practitioners were expecting. This does not mean, however, that the cohabitation portion of the statute will be similarly analyzed and applied.

Other trial judges have indicated that the statute requires a suspension or termination, although a separate question exists as to when a suspension would occur. Perhaps as a sign of rulings to come or, perhaps, also inadvertently, the Appellate Division in one of those two cases I mentioned above indicated that alimony “shall” terminate upon cohabitation by the payee. This, however, was neither an issue or holding in the case, and even the statute uses the word “may” rather than “shall.” Also, when should a so-called suspension of alimony even occur? Should it only occur during a cohabitation proceeding and potentially be reinstated if cohabitation is ultimately unproven? Should it occur as a final result and be subject to reinstatement if the cohabitation ends?  The answers are unknown at this point.

What about making the initial cohabitation showing?  As is true with any case, judges are going to look at the same set of facts differently from each other. For instance, while one judge may find it sufficient for the payor to establish that the couple has been living together at least four days per week for a month, another judge may want more. While one judge may deem sufficient intertwined finances via a single joint bank account and the couple holding themselves out as in a relationship on occasion, another judge may disagree. All judges present at the seminars seem to agree, however, that the more information and evidence of cohabitation to be considered in the initial filing, the better. We even discussed a good old fashioned garbage inspection, where you never know what kind of gems may turn up in a payee’s trash bin – in other words, one payee’s trash may be one payor’s Exhibit A to a Certification.

Thus, no matter how the law is to apply once cohabitation is established (suspension, terminate or modify), the process by which a payor spouse is to gather information for a motion to “address” alimony due to cohabitation seems to remain the same. Private investigators will often still be a potentially key part of the puzzle, and, to the extent the couple somehow cannot manage to keep themselves from discussing the relationship on social media, such evidence is often, but not always, the equivalent of the goose that laid the golden egg – in other words, the online version of the garbage can.

It was those recent seminars that really brought back to the forefront for me how much has yet to be determined under the amended law and, perhaps more importantly, how each case leaves unanswered the question of what gets a moving party passed that first litigation hurdle, and what a payee spouse can do to successfully fend it off. For both sides, the picture remains cloudy in some ways and crystal clear in others, and that is without any of the sort of guidance that we have recently seen with the retirement portion of the amended law.  We will all continue to stay tuned as to what this portion of the new law can do once tested.

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 Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of mondspeer (Google free images).

While the Appellate Division has yet to address the substantive application and meaning of the cohabitation provisions of the amended alimony law, it has now determined twice when the law may apply.

In October, I wrote about how the Appellate Division in Spangenberg v. Kolakowsi, a reported (precedential) decision, held that the cohabitation portion of the amended law does not apply to post-Judgment Orders finalized prior to the amendment’s September 10, 2014 effective date.  On March 2, 2016, the Appellate Division in the unpublished (not precedential) decision of Chernin v. Chernin, similarly held that the 2014 amendments, “by the specific terms of the statute’s effective date”, are not applicable in a situation where cohabitation was previously established pre-effective date.  The primary point to be taken here is that the change in the law alone is not enough to reopen a previously concluded matter – in this case, a cohabitation matter.

alimony movie poster

Here are the undisputed facts that you need to know:

  • The parties were married in 1958 and divorced in 1992.  The property settlement agreement provided that husband would pay permanent alimony of $100,000 per year until July 1, 1997, at which time the payments would increase to $150,000 annually.
  • In 1996, husband moved to retroactively terminate his alimony based on wife’s cohabitation.  Following a five day trial, the court granted husband’s motion in part by finding cohabitation, ordering wife to reimburse husband in a sum certain for past overpayments retroactive to when alimony commenced, and reducing husband’s annual alimony obligation by $12,000 annually.  There was no modification to the alimony duration.
  • Husband appealed, arguing that alimony should have been terminated pursuant to leading case law at the time.  Husband’s argument was rejected.
  • Following passage of the amended alimony law, husband again moved to be relieved of his alimony obligation based on wife’s cohabitation.  Counsel, during oral argument, confirmed that nothing had changed in the past twenty years following the prior modification other than the amendment’s passage.
  • The trial court found that the amendment’s passage constituted a change in circumstance and terminated alimony based on the trial court’s prior finding of cohabitation.
  • Wife appealed, arguing that the court erred in failing to give effect to the “anti-retroactivity provision” of the amended statute.

In reversing the trial court in wife’s favor, the Appellate Division quoted that anti-retroactivity provision, which provides:

This act shall take effect immediately and shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into:

a.  a final judgment of divorce or dissolution;

b.  a final order that has concluded post-Judgment litigation; or

c.  any enforceable written agreement between the parties.

The Appellate Court determined that the parties’ post-Judgment litigation concluded in 1997 when a final Order was entered reducing the amount of alimony and leaving the permanent duration untouched based on the wife’s cohabitation.  In other words, the cohabitation issue was already addressed and the matter concluded.  As a result, husband could not simply reopen the issue based solely on the law’s amendment.  Citing Spangenberg, the Court concluded:

Because the Legislature has commanded that the 2014 amendments not be construed to modify the duration of alimony ordered or agreed upon, or to modify specifically bargained for contractual provisions incorporated into an enforceable written agreement between the parties, a judgment of divorce, or a final order concluding post-Judgment litigation, all of which applied here, the court plainly erred in relying on the amendments to modify the permanent alimony previously ordered in this case.

So there you have it.  A second decision from the Appellate Division – this one expressly following Spangenberg – addressing when the cohabitation provisions (and, more broadly, the amended law as a whole) may apply to a given set of facts and circumstances.  The new law itself is not a change in circumstances meriting a review of a previously closed case.  Similar to that case, where the Appellate Division used the word “shall” (rather than “may”) when describing whether alimony should terminate in a cohabitation situation under the statute, the Appellate Court did not address whether terminating alimony was the only appropriate measure had application of the new law been deemed appropriate.  Stay tuned for future developments.

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 Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.

With New Jersey’s amended alimony statute becoming effective on September 10, 2014, many questions have arisen as to how the statute will apply and the meaning of many of the new terms contained therein.  The Appellate Division’s newly reported (precedential) decision in Spangenberg v. Kolakowski provides some insight from the judiciary that we have been waiting for, specifically holding that the new cohabitation provision of the amended statute does not apply to post-Judgment orders finalized before the statute’s effective date.  As detailed below, the decision makes logical and legal sense when considered with a review of the legislature’s intentions as to when the amendments apply.

alimony gauge

Here are the key facts you need to know:

  • The parties were divorced in June, 2012, 20 years after they married and more than 2 years before the statute was amended.
  • A settlement agreement was executed wherein the husband agreed to pay $2,200 in monthly alimony based on the wife earning $45,000 in gross annual income and the husband earning $125,000.  The agreement also provided that alimony would be reviewed “on or about June 7, 2014” based on the “expectation that the [wife’s] income will have increased by that time as a result of additional training or other factors.”
  • Wife was also required to inform husband when she was cohabiting with another, which would trigger a review of alimony “consistent with the Gayet case and evolving caselaw.”  Gayet v. Gayet is one of the seminal cases on the issue of cohabitation and its impact upon alimony in the State of New Jersey.
  • Husband moved to modify his alimony obligation, alleging that wife was cohabiting.  Wife admitted to moving into her boyfriend’s residence in August, 2013.

In an Order dated December 18, 2013, the trial judge found wife to be receiving an economic benefit from the cohabitation, thereby warranting an alimony modification.  Husband subsequently filed a motion for reconsideration of the order, seeking therein a review of wife’s need for alimony.  The motion was deemed premature, with a review to take place in June, 2014, as called for in the settlement agreement.

On July 21, 2014, husband moved to modify or terminate alimony per the settlement agreement’s 2-year review provision.  Without oral argument, the trial judge denied a further reduction in alimony, in part, because he had already reduced alimony based on the wife’s cohabitation, and because husband failed to properly and completely divulge his financial documentation/information.  Husband again filed for reconsideration, but was denied.

On appeal, husband argued, in part, that the trial court improperly ignored the adopted amendments to the alimony statute regarding cohabitation.  The Appellate Court cited to the applicable provisions of the amended statute:

l. When a self-employed party seeks modification of alimony because of an involuntary reduction in income since the date of the order from which modification is sought, then that party’s application for relief must include an analysis that sets forth the economic and non-economic benefits the party receives from the business, and which compares these economic and non-economic benefits to those that were in existence at the time of the entry of the order.

m. When assessing a temporary remedy, the court may temporarily suspend support, or reduce support on terms; direct that support be paid in some amount from assets pending further proceedings; direct a periodic review; or enter any other order the court finds appropriate to assure fairness and equity to both parties.

n. Alimony may be suspended or terminated if the payee cohabits with another person. Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.

[N.J.S.A. 2A:34-23(l)-(n).]

The Appellate Court limited its review to whether the legislature intended the cohabitation portion of the amendment to apply to the subject situation.  As a potentially important aside, in so limiting, the Court stated, “Accordingly, our review is limited to whether the statute’s cohabitation amendments, requiring alimony to be terminated or suspended, apply.”  The statute’s cohabitation language, however, only provides that alimony “may” be suspended or terminated in the event of cohabitation.  Whether this was intentional is uncertain, but it is consistent with the payor-friendly nature of the amendments and, perhaps, answers one primary question as to whether the previously existing “economic benefits” test still applies (as provided in the above-referenced Gayet matter).

Back to the actual issue before the Court, it then quoted that part of the bill adopting the amendments addressing whether same would apply retroactively, or only prospectively.  Such language provides:

This act shall take effect immediately and shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into:

a. a final judgment of divorce or dissolution;

b. a final order that has concluded post-judgment litigation; or

c. any enforceable written agreement between the parties.

The Court found that such language “signals the legislative recognition of the need to uphold prior agreements executed or final orders filed before adoption of the statutory amendments.”  It also noted how courts generally enforce newly enacted substantive statutes on a prospective basis, “unless the laws clearly expresses a contrary intent.”

Since the trial court conducted a review and issued a final order as to the economic effect of the wife’s cohabitation prior to the enacted amendments, and alimony was reduced at such time based on the prior legal standard applicable in such matters, the new cohabitation provisions of the amended statute did not apply.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of freedigitalphotos.net (attributed to Stuart Miles)

Change is finally here – On September 10, 2014, Governor Chris Christie signed into law substantial and significant amendments to New Jersey’s alimony law.  The law took immediate effect on that date.  I previously blogged about the now effective changes after the legislature passed the bill during the Summer, and we have prepared an Alert on the final bill that you can read here.

heart and money

Stay tuned for blog posts that more specifically address the changes to the alimony law regarding the duration of alimony, retirement, cohabitation, loss of income and more.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

Photo Copyright: zimmytws / 123RF Stock Photo

If there is cohabitation by an ex-spouse who receives alimony, the ex-spouse is at risk not only to a potential decrease in alimony but also at risk for a total termination of alimony.  On March 7, 2013, the New Jersey Appellate Division released the published decision of Reese v. Weis upholding a trial court’s termination of permanent alimony as a result of cohabitation.

As we have blogged in the past, cohabitation is considered a change of circumstances that warrants review of alimony.  New Jersey Courts have described “cohabitation” as involving an “intimate” “close and enduring” relationship “requiring more than a common residence”  whereby the “couple has undertaken duties and privileges that are commonly associated with marriage”.

Once cohabitation is established, the dependent ex-spouse has the burden of proving that he or she continues to be dependent upon the alimony being paid regardless of the cohabitation.   When a dependent ex-spouse economically benefits from the cohabitation, his or her support may be reduced or terminated.  A reduction is appropriate where the dependent ex-spouse can prove that he or she still has some need to the support taking into consideration the economic benefit received from the cohabitation. 

What triggers a reduction versus termination?  In the 46 page Reese decision, the Court concluded that the lower Court’s termination of the dependent ex-spouse’s alimony as a result of cohabitation was appropriate for the following reasons.

First and most importantly, the dependent ex-spouse did not prove a continued need for support.  The dependent ex-spouse asserted that her partner did not subsidize any of her expenses and that her expenses and those of the parties’ children were paid solely by her.  In the alternative, she argued that if the Court found that the partner was providing a financial benefit to her, such benefit did not equate to a total elimination of support.  Unfortunately for the dependent ex-spouse, during the trial, she could not articulate or provide evidence as to her actual need for continued support and how the cohabitation did not impact or only minimally impact  her financial needs. 

Second, the partner provided a direct economic benefit to the dependent ex-spouse by directly paying a significant amount towards the dependent ex-spouse and the parties’ children’s expenses (such as housing, food, clothing, transportation, etc.).

Third, the partner provided indirect economic benefits to the dependent ex-spouse including gifts and luxury vacations which enhanced the dependent ex-spouse’s lifestyle.  It was virtually impossible for the trial court to discern the household financial contributions by the dependent ex-spouse and by the partner because of their intertwined finances.

Fourth, the total years that the dependent ex-spouse and the partner resided together exceeded the term of her marriage to her ex-husband who was paying alimony and child support in excess of $235,000 per year.  In short, the partner not only provided direct and indirect economic benefits to the dependent ex-spouse but elevated her lifestyle for a period longer than the parties enjoyed their marital lifestyle.

The majority of the Reese opinion centered on the cohabitation issues.  However, the Court also noted that despite the fact that the application to terminate support was filed after there had been ten years of open cohabitation, the ex-husband was not precluded from filing the application after all those years.

The Reese decision shows that when a dependent ex-spouse chooses to reside with a partner, modification of alimony payments are not solely based upon the partner’s dollar for dollar contributions to the relationship but the enhancements to the standard of living of the dependent ex-spouse by the partner and the length of the cohabitation versus the length of the marriage to the party paying alimony also weigh into the Court’s analysis.

As a follow up to my blog post of last week, this week the Appellate Division came down with yet another cohabitation decision. The case of Pizzuti v. Proctor was decided on March 31, 2011. In Pizzuti, the wife appealed from a decision wherein the trial court terminated her former husband’s alimony obligation of $100 per week on a finding of changed circumstances based on the wife’s cohabitation with an unrelated male.

At the trial level the husband submitted a myriad of proofs that the wife was cohabitating in support of his obligation to terminate alimony. His efforts were for naught however, because the fact that she was cohabitating went completely uncontested. Indeed, in response to the husband’s allegations, the wife stated as follows: "I will spare the Court the trouble of scheduling a plenary hearing because I admit that I do cohabitate with Mr. Argenzio at his home, located [in] Ramsey, New Jersey and have been since 1999." However, as I stated in my previous blog, proof of cohabitation is only half the battle. The next inquiry is whether, by virtue of the cohabitation, the wife was economically dependant on her new paramour. In New Jersey, the fact of economic dependence is presumed upon a showing of cohabitation, and it is incumbent the cohabitating spouse to prove otherwise.

Continue Reading Another Decision from the Appellate Division on the Consequences of Cohabitation on Alimony

It seems as though a wave of cohabitation cases has recently swept across the Appellate Division in New Jersey. And for good reason. While well-settled is the concept that a supported spouse’s cohabitation typically will constitute a change of circumstances sufficient to justify end of a supporting spouse’s alimony obligation, the nuances of the law can be quite involved. This can been seen from the Appellate Division’s February decision in the case of Wonderlin v. Wonderlin, on which Sandra Fava blogged. That holding came down to evidence of the times and frequency that an unrelated male came and went from a former wife’s home, which, the Appellate Division ruled, entitled a former husband to discovery on the issue of whether the wife was cohabitating.

While the comings and goings of an unrelated male can be one indicia of cohabitation, in the case of Okoshi-Wilson v. Wilson, the Appellate Division examined a different source to prove cohabitation: the wife’s earnings as compared to her expenditures. There, the husband moved for a termination of his alimony obligation on the basis of the wife’s cohabitation with an unrelated male.

It seemed, based on the proofs submitted, that the husband had always earned a significantly greater salary than the wife, with the wife only earning about $47,000 in 2008 after her alimony of $22,500 per year was considered, as compared to the husband’s $164,164 the year prior. Despite this fact, the wife was apparently living in a posh, three-bedroom Upper East Side apartment, which she clearly was unable to afford on her salary alone. As it turned out, also a tenant of the same apartment was an unrelated male by the name of Steven Macy. This revelation led to the husband’s application for a termination of his alimony obligations. During the hearing at the trial level, Okoshi admitted that she had been able to maintain her New York City residence, because she was Macy’s tenant, allegedly paying him only $135 per week in rent and household work such as watering the plants, purchasing food, and collecting the mail. She further testified that Macy and his daughter only stay at the apartment about five times per month. Okoshi had documents to support some of her assertions — a lease signed by her and Macy and receipts for rent she paid in cash. She denied any romantic involvement with Macy and said he does not support her in any way.

Continue Reading Can a landlord-tenant relationship terminate an alimony obligation based upon cohabitation?

If you have been through the process of divorce and have a spousal support obligation to your ex, you should have been advised that aside from explicitly stating an end date for your spousal support obligation, there are few ways to end the payments.  Death is certainly one of them.  If your ex remarries that is a second.  What happens when your ex is living with someone else?

The issue of cohabitation has been dealt with by the courts in NJ in case law since the 1970’s.  The issue in and of itself is not new.  How the courts have dealt with allowing parties to prove the issue has been somewhat fuzzy, until a recent unpublished Appellate Division decision provided what seems like some much needed, long time coming, guidance.  If you haven’t already, take a look at Wonderlin v. Wonderlin .

So what’s the guidance- well let’s start with the basic principles cases like Konzelman v. Konzelman, 158 NJ 185 (1999) and Gayet v. Gayet, 92 NJ 149 (1983) have given us.  In Gayet, the court told us we need to look at whether the cohabitating couple bears the "generic character of a family unit as a relatively permanent household".  In Konzelman, the court told us that the relationship in question needed to show signs of "stability, permanency and mutual interdependence".  The proof required is that "of an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage" which include but are not limited to "living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple’s social and family circle".  The problem for litigant’s and practitioners alike has been, how do you prove such intimate details at first blush so as to convince a court that you have met your burden of proof and now the alleged cohabitating ex must produce evidence to show there is no economic benefit of the relationship and the spousal support is still needed?

Continue Reading I THINK MY EX IS COHABITATING- NOW WHAT?

If a dependent spouse starts living with an unrelated adult after the divorce, is that enough to terminate the supporting spouse’s alimony obligation? While the answer to that question is not as simple as one would think, it is an issue that often arises, especially in a troubled economy where many supporting spouses are having a more difficult time meeting their payment obligations.

In New Jersey, “cohabitation” is considered a “changed circumstance” allowing the supporting spouse to seek an alimony reduction by first obtaining discovery and then demonstrating that the dependent spouse’s needs have either decreased because the third person is contributing to the dependent spouse’s support or is effectively subsidizing the dependent spouse at the supporting spouse’s expense. What, however, is meant by cohabitation? Courts in this state have concluded that it does not merely mean a so-called dating relationship, but, rather, involves a relationship described as having the “generic character of a family unit as a relatively permanent household” where there exists an “intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage.” What does that mean? Since each situation is different, a court will look at a given set of facts for the marital-type relationship including, but not limited to, a joint residence, joint/connected finances, shared living expenses and performance of household tasks, and the relationship is held out in this way to the community, social groups, and family.

Once the supporting spouse establishes the changed circumstance of cohabitation, the burden of proof then shifts to the dependent spouse to prove that he or she has derived no economic benefit from proven cohabitation. The reason that the burden shift is simple – the dependent spouse has greater access to relevant information than does the supporting spouse to disprove a cohabitation benefit.

Continue Reading COHABITATION AND THE SHIFTING BURDEN OF PROOF