Cohabitation

For those of you have have followed the continuum in New Jersey’s palimony law, October has proven to be a busy month, with not one but two opinions.

Nearly one year ago, the NJ legislature passed law that, in sum, prohibited the enforcement of palimony agreements that have not been put in writing.  When the new law went into effect, we quickly blogged on the breaking news.

With the passage of N.J.S.A. 25:1-5(h) came many questions.  Attorneys and litigants wondered what would happen to those cases already pending before the court; what would happen to those who had valid claims for palimony under what had previously been the law in NJ but did not yet act?  Lots had an opinion, but really only time would tell.  Botis v. Estate of Kudrick, 421 N.J. Super, 107 (App. Div. 2011) provided some guidance, telling practitioners and litigants alike that the statute applied only to suits filed after its effective date.

On October 6, 2011, a Hudson County Superior Court judge upheld a non-written palimony agreement, finding overwhelming evidence that the parties “lived together, and had made a commitment to each other to support each other, to share with each other, and most of all, as is implicit in every agreement, to treat each other fairly and avoid harm to the other.”

In the matter of Fernandes v. Arantes,  this same sex couple had been living together since 1996.  In 2005, after 11 years of living together in various locations all over the world, they bought a home in Jersey City, however only Arantes’ name was on the deed (although Fernandes’ was added later). The parties never married or entered a formal union but did exchange vows in an informal setting, shared expenses and investments, and supported each other financially, claimed Fernandes.

In April 2009, Arantes obtained a temporary restraining order against Fernandes.  The case was dismissed although a no-contact order was issued, which prevented Fernandes from accessing the Jersey City home.  On October 20, 2009, Fernandes filed a motion which sought access to the home to retrieve belongings and replacement of $80,000 Arantes allegedly withdrew from a joint bank account.  On February 15, 2011, an amended complaint was filed, alleging palimony and unjust enrichment.  In defense, Arantes claimed the relationship ended in 2001 and the parties only continued to live together for financial reasons.

After hearing testimony, the trial judge found that the relationship was that of a marital-type relationship.  Finding that “[p]arties who entered into these kinds of relationships usually do not record their understanding in specific legalese”, the trial court awarded Fernandes’ claim of palimony, although the amended complaint was filed after the passage of the statute.

As this is a trial court opinion, it is not binding on other courts.Continue Reading Recent Developments in the Ever-Changing NJ Law on Palimony

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?