Morris County Divorce Attorneys

Going through a divorce can be one of the most stressful and emotionally difficult experiences you will ever go through in your life.  Everything that you know is about to change in a dramatic way, and even getting started can be a daunting task.  After having recently blogged about who you can turn to when the divorce is over, here are five things to consider when preparing for the divorce process set (not surprisingly to those who know me) to some of my favorite Pearl Jam song titles and lyrics:

  1. The “Wishlist”:  When setting forth down the path of divorce, know what you are looking to walk away with when it is over.  Maybe you want to retain the marital home so that you can continue living the with the children, or perhaps your primary focus is on the children’s college education.  Maybe you are more generally focused on simply ensuring that you will be able to live some semblance of the lifestyle you once knew without worrying every single day about how you are going to pay your bills while trying to get back on your feet.  Lindsay Heller’s recent blog post about making your custody and parenting time wish list is also great place to start.  Knowing where you want to go and how you are going to get there on all issues will help focus you on what matters most in your divorce matter.
  2. “All that’s sacred comes from youth”:  Do what you can to ensure that the children’s best interests are protected and safeguarded from the outset of the divorce until its conclusion.  If there is no filed divorce action and you are attempting to privately resolve your divorce without an active litigation, consider talking with professionals (therapists, counselors and the like) to learn how best to parent your children during the divorce.  If there is a filed divorce action in the court system, not only should you still consider consulting with such professionals, but also you will be required to undergo New Jersey’s Parent’s Education Program, which, among other goals, is designed to help parents better understand what the children are and will be going through during a difficult time.
  3. Find the right “Fixer”:  The divorce process can be beyond overwhelming for countless reasons.  When searching for a divorce attorney, consider not just looking for someone who is experienced in family law.  Also consider retaining an attorney who you feel comfortable talking to.  Who you can trust.  Who you can confide in and discuss certain aspects of your life and your marriage that you may not ordinarily feel comfortable speaking about with anyone else.  Who is responsive and reliable.  Who can ultimately advocate for you in the way that you believe best serves your interests and those of your children.  Who will listen to you and be mindful of what you are looking to achieve.
  4. “Saw things so much clearer”:  Many financially dependent spouses have no idea what assets or liabilities make up the marital estate.  Perhaps the financially superior spouse always paid the household bills.  Perhaps all assets and accounts are only in that same spouse’s name.  All of a sudden you, as the dependent spouse, are tasked with figuring everything out so that you can simply determine what you may or may not be entitled to in the divorce.  Determining as early on in the process as possible what incomes, assets and liabilities exist will provide you and your divorce attorney with a clearer understanding of the picture that is your marital estate and how it should be distributed.  In so doing, it is best (if possible) to get together the financial documents underlying the incomes, assets and liabilities, such as income tax returns, account statements, bills and the like.
  5. “The waiting drove me mad”:  As I have previously blogged, patience in a divorce proceeding can be a tremendous virtue.  There are so many factors beyond your control that can delay the matter’s conclusion that you can easily and understandably become frustrated and more willing to surrender to an inequitable settlement.  As a result, it is best to concern yourself with what you can control.  As indicated above, get your information and documentation together for your divorce attorney.  Timely comply with court deadlines.  Present reasonable settlement positions and if settlement cannot happen, do what is necessary to prepare for trial.

Commencing the divorce process, let alone going through the process to conclusion, may feel like you are at the foot of a mountain without the equipment necessary to even begin scaling its face.  The process and all of the emotions that go along with it, however, will hopefully be made easier when taking the above detailed steps into consideration.

___________________________________________________

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 by Lugnuts (talk) – I (Lugnuts (talk)) created this work entirely by myself. Photo from Pearl Jam show dated 17th August 2009., CC BY-SA 3.0, https://en.wikipedia.org/w/index.php?curid=24027300

As the line from one of my favorite White Stripes songs goes, “Fall is Here, Hear the Yell, Back to School, Ring the Bell…” I know when the new school year has arrived in my house because the boys are getting the last of their summer homework done, enjoying their last days of summer freedom and we are frantically shopping for new school supplies to stuff into their backpacks for their first day.

It is a crazy time of year to be a parent.  For divorced parents, however, the level of stress can be even greater and, as a result, increase the need for better planning and time management.  Grab a pen and a fresh notebook because here are a few tips for the divorced parent to start the new school year.

Become Calendar Masters:  Parenting time, classes, activities, child care, doctor and therapy appointments, sports, birthday parties and more.  The possible scheduling coordination and resulting issues are endless, and, as a result, it is very important to be on top of your game when it comes to knowing what is going on and when.  Using a web-based calendar with your ex can be invaluable to ensuring everything runs as smoothly as possible, and can even be a central hub for communications when emails and texts are not working well.  Consider Our Family Wizard and Google Calendar as two often used calendar options.

Talk to School Administrators, Counselors, Teachers, Coaches and More:  Getting these key figures up to speed on what is happening at home can greatly help them determine how best to care for and communicate with your child.  Have these conversations in-person, when possible, with the other parent and ensure that the both of you are copied on written communications so that no one is left out of the loop.  When appropriate, ensure that you and the other parent are both listed as primary contacts at school, and with sports teams, other activity groups, and doctors.

Attend Conferences, Events and Activities:  Know how your child is doing in school academically, socially, and athletically.  Try to keep everything as positive and normal as possible by attending sporting events, school concerts and plays, and classroom activities.  Try not to let these opportunities pass by without taking advantage, of course, understanding that work often takes precedent.  Your child may appreciate and remember such efforts more than you will ever know.

Keep an Eye on the Kids:  Growing up is hard enough without having to deal with family conflicts at home.  If you see your child having a hard time adjusting to the new school year, consider school counseling or private therapy to work through the situation.  School administrators and counselors may have private therapist recommendations tailored to your child’s needs.

Starting the new school year is always a daunting task for the entire household, but hopefully these tips will help you pass the test with flying colors.

____________________________________________________

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

I know, I know. Summer is coming to an end and despite how much torrential rain we have had, it is still sad to see it fade off into the sunset as the days get shorter and colder. Having just returned from a shore trip with my family, it is incredible to reflect on hours and hours of planning that go into even a small vacation.

For divorced parents, the level of detail and coordinating necessary to schedule vacations often increases ten-fold, as you not only have to worry about when the kids potentially get home from sleepaway camp, when school starts, when school sports/activities start (mid to late August sounds just about right so that going on vacation is ever that much harder), but also when the other parent is going on vacation, how the children will react to separate vacations, scheduling calls with the other parent during the vacation, and so much more.

With that in mind, here are five tips for scheduling vacations:

  1. Give as much notice to the other parent as possible. The more notice you provide to the other parent of when and where you plan on taking a vacation with the kids, the better. Many of our settlement agreements include language containing deadlines as to when vacation plans must be made known, who has the first choice each year, and the like, so provide as much notice as possible to help ensure there are minimal conflicts.
  2. Provide all contact information, itinerary details, and international travel approvals to the other parent. It should go without question that you need to provide details about vacation starts, where you are going, how you can be reached (other than cell phone) and any other pertinent details. You should also note that international travel may require an additional level of approval, cooperation and consent from the non-traveling parent.
  3. If you are going away together, be on your best behavior. While somewhat rare, some divorced parents will continue to vacation together with the children. While avoiding conflict is not always easy for either married or divorced parents, do your best to provide a positive experience for the children, present a united front to the extent possible, and convey a sense of normalcy.
  4. Be sure that the kids stay in touch with the other parent while away. Communicating with the non-vacationing parent oftentimes takes on a greater level of significance during vacation, especially with potentially packed travel schedules and distractions. Try to set aside a specific time when the children can speak to/video conference with the other parent every day so that they keep in touch as best as possible under the circumstances.
  5. Try to keep the conflict at a minimum. Vacations are supposed to be fun and relaxing. In the days leading up to the vacation’s commencement, consider being flexible with the other parent’s parenting time or communication requests. Keep the acrimony to a minimum, especially if camp/sleepaway camp for the children just ended and time is short before the vacation starts.

While every divorced family has its own set of wrinkles and hurdles to overcome in planning the best possible vacation time with the kids, hopefully these tips will help ensure that you are more worried about getting in as much sun as possible than anything else.

____________________________________________________

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 attributed to jmesquitaau

Every day I represent people who believe that they are never going to move on from their divorce. These incredibly strong people have a difficult time understanding that there is, in fact, a light at the end of the tunnel because the divorce has understandably become the primary focus of their everyday existence. One of the hardest parts of the divorce process is oftentimes not getting to the end, but, rather, coming to a question of what to do next?  As you go through the divorce process, there are a few people who can help you make your way once the divorce is finalized and can help you find that light at the end of the tunnel.

The therapist – For you, for the kids, or perhaps for the entire family, a licensed and well-trained therapist with whom you are comfortable can be critical to helping you/your kids move beyond the divorce. A therapist can also help you work through what happened during the marriage, the divorce, and how to adapt to a brand new future.

The divorce coach – Different from a therapist in many ways, a divorce coach is trained to help you get through the divorce process and move forward with your life from a more practical perspective. A good divorce coach can assist you in developing a positive, forward-looking and goal-oriented strategy either early on in the divorce process, in the midst of its occurrence, or even after its completion.

The parenting coordinator – No one said co-parenting after a divorce is easy, and a parenting coordinator can help transition parents into more workable co-parenting roles or, in cases where high acrimony exists render recommendations on anything from where the parenting time exchanges should occur to when there should be make-up parenting time, and so much more.  For those parents who have seen their parenting role minimized by the other parent, the parenting coordinator’s existence and recommendations on these types of issues can help preserve your ability to have a say, and ideally protect your relationship with the children.

The accountant and the financial advisor – After years of the other spouse handling the household finances and making financial decisions, you are now faced with having to tackle these issues on your own.  The situation may be even more complicated if you were not involved in the financial decisions and do not have an understanding of your monthly expenses, assets and any debts you were left with. A sharp accountant and financial advisor can help put your mind at ease as you try to figure out where to go from here.

The personal support system – Ultimately, your family and friends will be your strongest support system both during the divorce process and after its conclusion.  Never hesitate to turn to those with whom you feel comfortable to help get you through what may be a very difficult, but finite time in your life.

Everyone has their own way of moving on once the divorce is over.  How you get to where you want to be at the end of that tunnel, however, is ultimately up to you.

____________________________________________________

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

On a daily basis, I’ll go online and search for the latest in divorce news to see what people are talking about. Two recent stories were of particular note not for the facts involved but, rather, for the newsworthy legal outcomes. Each story is a reminder that in New Jersey almost every case proceeds on a no-fault basis, even though, on occasion, a spouse may want to proceed on a claim of adultery, extreme cruelty, or another fault-based ground depending on the situation.

U.K. Wife Denied Divorce after Forty Years of Marriage

In the first story out of the United Kingdom, the Supreme Court dismissed an appeal from a woman seeking to divorce her husband after almost 40 years of marriage when they separated in 2015. The husband contested the petition (which apparently does not occur often) on the basis that the marriage was a success and that they still had a “few years” to enjoy together.

The wife’s application was denied because U.K. law provides that a quick divorce cannot be granted unless the party seeking the divorce claims adultery, desertion or “unreasonable behavior” by the other spouse. Otherwise, a divorce can only occur in the U.K. if the parties have lived apart for two years and the parties consent to the divorce, or, if one spouse objects, after five years of separation. In other words, since the husband was contesting the divorce the wife has no choice but to remain separated from him until 2020 for the divorce to occur.

North Carolina Man Ordered To Pay $9 Million to Man with Whose Wife He Had an Affair

The next story involves a boyfriend who was ordered to pay a husband approximately $9 million for having an affair with the husband’s wife. The award was comprised mostly of punitive damages designed to punish the boyfriend, and approximately $2 million in compensatory damages. The husband commenced a lawsuit with claims of criminal conversation, alienation of affection, intentional infliction of emotional distress, negligent infliction of emotional distress, and assault and battery. He specifically claimed that after learning of the affair his business lost both revenue and an employee (the wife).

Wondering how this type of lawsuit can be possible? Well, in North Carolina a person can sue a someone with whom his or her spouse has engaged with outside of the marriage for alienation of affection, and for criminal conversation, which involves extramarital sexual acts. Interestingly, this type of law still remains on the books of five other states. Incredibly, the claims held because there was no proof that the parties’ marriage was failing prior to commencement of the extramarital relationship, and third person being sued need not even have meant to harm the marriage to be found liable.

What Happens in New Jersey?

Had these situations occurred in New Jersey, the results would have been very different. As I mentioned before, most divorces in New Jersey proceed on the no-fault grounds of irreconcilable differences where, after six months of such differences, it is no longer reasonable for the spouses to remain married. As a result, the wife in the first story would have been able to divorce her husband without issue and without having to wait out the five-year separation period. As for the North Carolina man wondering how he is going to pay $9 million to the jilted husband, such claims could not have been brought against him in New Jersey with any sort of legitimacy.

Ultimately, while fault can – on very rare occasions – come into play in a New Jersey divorce, it is almost always an irrelevant factor to the outcome other oftentimes playing a significant role in the spouses’ emotions. New Jersey, like most other states, is more focused on allowing people to move on with their lives without pointing fingers, and without the time and expense involved in having to address these types of issues.

____________________________________________________

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

Demonstrating yet again that cohabitation cases are almost always a creature of their specific facts and circumstances, the Appellate Division in the recently unpublished, Salvatore v. Salvatore, reversed a trial court’s decision denying a payor former husband’s motion to terminate his alimony obligation based on his payee former wife’s cohabitation in a manner defined by the parties’ Marital Settlement Agreement (MSA).

Here are the facts that you need to know:

  • The parties entered into a settlement agreement and were divorced in early 2011.
  • As to alimony, the agreement provided that the payer’s alimony obligation would terminate upon payee’s remarriage, payer’s 66th birthday, or either party’s death.  As to cohabitation, the agreement provided that payee’s “cohabitation with an unrelated adult in a relationship tantamount to marriage [would] be a re-evaluation event”.
  • In an outright rarity in cohabitation matters, which often involve payee spouses concealing the cohabitation from the payor spouse so as to preserve the support obligation, here the payee advised the payor of her planned cohabitation.
  • Even more rare is that the parties then entered into an addendum to the MSA, wherein: (1) they agreed to the cohabitation; (2) recognized they were “without sufficient knowledge to determine whether the cohabitation [would] be temporary or permanent”; (3) reduced monthly alimony payments by $850 “during the period of cohabitation”; and (4) provided that, “[b]ecause the [p]arties cannot determine the permanency of the cohabitation,” alimony would be reinstated “at the full amount in the [MSA] . . . for the remainder of the term” if the cohabitation terminated.
  • Approximately six years later, the payor filed a motion to terminate his alimony based on the payee’s continued cohabitation.  The trial judge denied the motion, finding that the cohabitation was admitted to at the time of the addendum and, as a result, its continued existence – in and of itself – was not a change in circumstances.  Payor appealed.

Reversing the trial court, the Appellate Division held that the trial judge:

  1. “misapprehended that the change of circumstances involved only defendant’s cohabitation, failing to consider the terms of the MSA that provided cohabitation ‘in a relationship tantamount to marriage’ triggered the ‘re-evaluation event.'”
  2. erred in considering the payer’s failure to allege a financial change in circumstance.
  3. held that financial changes were “of no moment” when considering the MSA language at issue.

In so doing, the Appellate Court reiterated seminal pre-2014 statute case law mandating that the “economic needs” of the payee spouse need not be considered so long as the cohabitation provision meriting an alimony modification is fair.

Addressing the subject addendum to the MSA – really the unique feature of this particular cohabitation case – the Appellate Division found that the trial court:

  1. ignored the cohabitation provision of the MSA by finding that the addendum was the very “re-evaluation” called for by the settlement agreement;
  2. in so doing, relegated the addendum as the benchmark event from which a change in circumstance would have to occur to merit further relief for the payor.  In other words, it was in error for the trial court to find that the payee’s ongoing cohabitation was not a change in circumstance simply because the cohabitation was initially acknowledged by the parties six (6) years earlier in the executed addendum to the MSA.  Specifically, “the trial judge ignored the agreement – and the Konzelman Court’s definition – that more than a casual, perhaps temporary, cohabitation was needed to precipitate a review of the plaintiff’s alimony obligations.”
  3. the cohabitation here was neither short-term, nor temporary.
  4. there was no indication in the executed addendum that it in any way superseded the cohabitation provision of the MSA.

As a result, the matter was remanded to the trial court for a period of discovery and ultimate plenary hearing on the payor’s motion to terminate alimony.  While not shedding further light on the 2014 cohabitation statute (since this matter applied pre-statute case law), the unique factual scenario at issue only further highlights how cohabitation matters are often unpredictable, and rise and fall on the case-specific circumstances at issue.

____________________________________________________

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

Connect with Robert: Twitter_64 Linkedin

After much debate and, ultimately, a change in the governor’s mansion, New Jersey last week became only the second state (Delaware was the first) to ban – without exception – marriages involving individuals under 18 years of age.  Four other states ban the practice, but allow for a path to such marriage under certain exceptions, while similar legislation is under consideration in Ohio and Pennsylvania.  19 states still do not have a minimum marriage age, and 7 states allow for marriages involving children of 14 or 15 years of age.

The law, which, from a general perspective, is designed to protect minors (especially women) from being forced into arranged marriages, changes New Jersey’s prior law that allowed 16 and 17 year olds to procure marriage licenses with parental consent (16 year olds also required judicial approval).

*Photo courtesy of Alpha Stock Images – link to – http://alphastockimages.com/

____________________________________________________

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

In the midst of our ongoing quest for guidance as to how and when to apply the 2014 cohabitation statute, comes the Appellate Division’s recent unpublished (not precedential) decision in J.S. v. J.M.  While the decision does not reveal much in the way of noteworthy substance beyond what we have already seen in other post-statute decisions, the Appellate Division did opine on a couple of points that this author found interesting, one of which is addressed herein.

Briefly, the parties were divorced in 2010, with a cohabitation provision contained in the subject settlement agreement providing that alimony would “[t]erminate upon [defendant’s] cohabitation . . . with an unrelated male in lieu of remarriage for a period of [thirty] days or more.”  The payor ex-husband moved to terminate in alimony in September 2015 on the basis that the former wife was cohabiting with the payor’s brother.  While somewhat salacious in and of itself, the payor’s request to terminate support was ultimately denied by way of order and decision following a hearing.  Thereafter, the payor filed a motion for reconsideration of the order and decision, as well as an application to set aside same under Rule 4:50-1, each of which was denied.  The payor then only appealed the trial court’s order denying the motions for reconsideration and for relief under 4:50-1 (and not the original order following trial).

The first interesting point in the Appellate Division’s decision focused on the trial judge’s hypothetical question posed during oral argument: “whether it was necessary for [payor] to have filed his motion to terminate [alimony] during [payee’s] relationship with [the alleged cohabitant].”  In other words, from my interpretation of the trial court’s question that was not the central issue on appeal and, thus, not fully fleshed out in the decision, is whether the payor can procure relief if he files his application after the alleged cohabitation comes to an end, rather than during the relationship.  Briefly referencing the Supreme Court of New Jersey’s 2016 decision in Quinn v. Quinn, the Appellate Division here provided:

In Quinn, 225 N.J. at 39, the court held that if a PSA provided for the termination of alimony upon the dependent spouse’s cohabitation, the court should enforce the terms of the agreement and terminate alimony, rather than suspend it during the period of cohabitation.  Again, even if we assume the judge’s question evidenced a palpably wrong understanding of the issue, and we do not think it did, Quinn has no application to this case because the judge found there was no cohabitation.

Does the Appellate Division’s indication, provided as dicta, renew or revive the argument that, but for an agreement calling for the termination of alimony upon cohabitation, an alimony obligation may be suspended during the period of cohabitation and then restored should the relationship come to an end?  Was this argument dead at all, and was Quinn limited to its facts?  For a reminder, the Supreme Court held in Quinn:

In sum, we reiterate today that an agreement to terminate alimony upon cohabitation entered by fully informed parties, represented by independent counsel, and without any evidence of overreaching, fraud, or coercion is enforceable. It is irrelevant that the cohabitation ceased during trial when that relationship had existed for a considerable period of time. Under those circumstances, when a judge finds that the spouse receiving alimony has cohabited, the obligor spouse is entitled to full enforcement of the parties’ agreement. When a court alters an agreement in the absence of a compelling reason, the court eviscerates the certitude the parties thought they had secured, and in the long run undermines this Court’s preference for settlement of all, including marital, disputes. Here, there were no compelling reasons to depart from the clear, unambiguous, and mutually understood terms of the PSA. We therefore reverse the judgment of the Appellate Division.

While this holding primarily focused on the fact that the subject agreement provided that alimony would terminate upon cohabitation (regardless of when the cohabitation occurred), did the Supreme Court more broadly find inconsequential that the cohabitation period ended in determining whether alimony should be reduced?  In other words, can a payee litigant still argue: (1) alimony should only be impacted, if at all, during the period of cohabitation; and (2) the payor has to file the application during the period of alleged cohabitation in order for it to have any merit?

Family law practitioners recently heard one of our State’s most esteemed (and now retired) Appellate Division judges opine that once cohabitation occurs, a modification/termination of support application should be considered even if the cohabitation came to an end, just as it would not matter if a payee remarried and then divorced the new spouse.  It is uncertain whether Quinn closed the door on this issue, and certain arguments perhaps thought dead may still exist, especially since no court has yet to interpret what the word “suspend” truly means in the confines of the cohabitation statute, and whether a suspension of support should be implemented beyond what may be a suspension, or partial suspension during the cohabitation proceeding itself.

In other words, as we await a more definitive interpretation and application of the cohabitation statute, practitioners will continue to creatively and zealously argue on behalf of litigants embroiled in such disputes.

_____________________________________________________

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

As New Jersey law on cohabitation continues to evolve after passage of the 2014 amendment to the alimony statute, a review of cases released since that time provides insight as to several components of the cohabitation discussion.

My new article on this topic in the New Jersey Lawyer’s Family Law issue can be found by clicking on the link below.

http://www.foxrothschild.com/robert-a-epstein/publications/a-review-of-cohabitation-law-in-a-post-amendment-landscape/

____________________________________________________

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

 

While we await guidance from the Appellate Division on how to interpret that portion of the amended alimony statute’s cohabitation provision, N.J.S.A. 2A:32-23n, indicating that alimony may be “suspended or terminated” in the event of a payee former spouse’s cohabitation, and whether the pre-statute “economic benefits” test remains alive and well, we are seeing newer cases that address the issue of cohabitation under the statute, rather than under pre-statute case law.

In Gille, Jr. v. Gille, an unpublished decision from the Appellate Division released in January, the Appellate Division affirmed the trial court’s Order denying the payor former spouse’s motion to terminate alimony to his former wife based on her cohabitation.  There, wife was receiving $130,000 in base alimony, subject to an upward adjustment based on whether the husband’s annual income exceeded $500,000 annually.

As to cohabitation, the parties settlement agreement provided that cohabitation would be a basis for modification or termination of the alimony obligation, “governed by the existing law at the time the application is made.”

During a 90-day period from February 9, 2015 to April 4, 2015, the husband paid a private detective to observe the wife’s home.  The detective recorded his observations over 29 days.  On 13 of those occasions, the wife’s boyfriend was present overnight.  He was also observed retrieving mail, assisting with snow removal, and entering the home when the wife or children were not present.  Immediately prior to oral argument on the motion, the husband had not obtained an update of the detective’s report immediately prior to filing his motion.

In denying the husband’s motion to terminate alimony, the trial court made the following findings:

Wife and boyfriend had no intertwined finances, did not share living expenses, and although they were dating, they did not even refer to themselves in conversation as “boyfriend and girlfriend.”  Also, the court found that instances of the boyfriend helping around the home were limited instances of “chivalry” – not the performance of household chores on a continuous basis.  It was ultimately deemed a dating relationship, but “nothing more.”

In analyzing the statutory cohabitation factors on appeal, the Appellate Division deferred to the trial court’s findings that the husband’s evidence did not meet the statutory elements required for him to fulfill his initial (prima facie) burden that would entitle him to relief and/or a future hearing to determine what, if anything, should happen to alimony.  In so affirming, the Appellate Division noted how the husband only managed to demonstrate that the boyfriend spent a limited number of nights at the wife’s home.

Since the husband failed to fulfill even his initial burden based on his limited proofs, the court did not need to address “suspend or terminate” language, or the question of whether the economic benefits test still applies.  Notably, the trial judge also made no mention of the fact that the new statute does not require the cohabitant to live full-time with the payee in order for cohabitation to exist.  These cases are always highly fact-sensitive and could depend, in part, on the judge deciding the issue.  To that end, the Appellate Division interestingly noted how the same trial judge had previously presided over post-Judgment litigation where the husband had engaged in misconduct with respect to his income, the disclosure thereof to the wife, and, in connection therewith, any upward adjustment of alimony.

_____________________________________________________

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