Konzelman v. Konzelman

Six years, nine months and 7 days following the enactment of New Jersey’s amended alimony statute’s cohabitation provision on September 10, 2014 (N.J.S.A. 2A:32-23n) the New Jersey Appellate Division provided
Continue Reading Appellate Division Defines the Elements a Movant Must Present in Order to Demonstrate a Prima Facie Case of Cohabitation

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?

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.


Continue Reading Hello Cohabitation. Goodbye Alimony.

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.


Continue Reading Cohabitation To Terminate Alimony?