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 On March 2, 2016, the Appellate Division in the unpublished (not precedential) decision of Chernin v. Chernin, similarly held that the 2014 amendments, “by the specific terms of the statute’s effective date”, are not applicable in a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.
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.
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 firstname.lastname@example.org.
*Photo courtesy of Google free images.