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.


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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.


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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?


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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.


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As the saying goes “Hell has no fury like a woman scorned,” but in a recent unpublished New Jersey Appellate Division decision the opposite was true.  In Weitz v. Weitz, App. Div. Docket No. A-1760-08T1, decided February 25, 2010, the defendant, Arthur Weitz, appealed from orders denying his post-judgment motions to terminate payment of alimony and for reconsideration.

Mr. Weitz and his ex-wife, Susan Weitz, were married in 1966 and divorced in 1994.  As part of the final judgment of divorce, a Property Settlement Agreement was entered into by the parties.  The Agreement required Mr. Weitz to pay alimony from 1994 until 2006, but if he was unemployed for a period exceeding 1 month than he would not have to pay for that month.  However, any months Mr. Weitz did not pay alimony would be tacked onto the termination date of the alimony.  The Agreement also stated that if Ms. Weitz remarried, died, or cohabitated with another man, alimony would immediately terminate.


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What happens when a dependent spouse begins living with another partner? Well, in the recent unpublished decision of Hartelust v. Hartelust the Appellate Division reviewed this question. Docket No. A-2519-08T3, decided January 12, 2010. 

Plaintiff Nora Hartelust appealed from an August 1, 2008 Order that terminated Defendant Alexander Hartelust’s alimony obligation.   After twenty years of marriage the couple was divorced in January 2007. The judgment of divorce incorporated the property settlement agreement (PSA).   At the time, the couple had a fifteen year old child, Alexander was earning $60,000/year and Nora was earning $15,000 per year. The PSA stated that Alexander would pay $175 per week in child support, $220 per week in permanent alimony, and transfer his ownership in the marital home to Nora. The PSA did not address cohabitation.


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When a former spouse receiving alimony begins cohabiting with another person, what happens to the payor spouse’s support obligation?  Does it terminate?  Is it reduced?  Many people often confront this question and the answer is not always as simple as one would think.  Simply put, merely cohabiting with another person does not automatically entitle the

In an interesting unreported decision released yesterday in the case of Christopher v. Christopher, the Appellate Division reversed a trial court opinion granting the wife permanent alimony. 

The parties were married 2006 and the Complaint for Divorce was filed in December 2004.  Interestingly, the trial court found and the Appellate Division affirmed the tacking

Many times a Property Settlement Agreement or Judgment of Divorce will address the payment of alimony.  An alimony calculation, among other factors, is calculated upon the length of the marriage, the income of the parties, the assets each will receive by way of the divorce, the age and health of the parties, and the age of children, if any, etc.  The standard in New Jersey for a divorcing spouse is the ability to maintain the ‘marital standard of living’ or as close thereto as may be economically possible.

So, does permanent alimony really mean forever? The answer depends on the language in an Agreement or Judgment of Divorce.  There is case law in New Jersey stating that cohabitation may be a cause to terminate alimony.  However, cohabitation alone is insufficient unless the Agreement states otherwise.  There also needs to be some financial benefit or economic intermingling.

Recently, the Appellate Division issued an unpublished decision in the matter of Adessa v. Adessa, A-2854-07T2, decided May 29, 2009, wherein husband filed a motion seeking to terminate his alimony obligation based upon his former wife’s cohabitation or alternatively, requesting a hearing and discovery to determine if there was an economic benefit being received by former wife as a result of her relationship.


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On February 3, 2009, my colleague, Katherine R. Sookhoo, an associate in or Philadelphia office,  wrote a very interesting article on cohabitation in our Pennsylvania Family Blog entitled For Love or Money.  I found the blog interesting for two reasons.  First, the rule of law between Pennsylvania and New Jersey are significantly different.  Second, although different, the difficulty litigants