Morris County Divorce Attorneys

I recently represented a client at mediation during which the parties were able to resolve virtually all of their issues, save for the Wife’s claim that the Husband should make a significant contribution to her counsel fees.

It was the Wife’s position that the Husband had run up her legal fees with multiple order violations, refusal to turn over discovery, and by taking totally unreasonable positions; moreover, since he made more money than her, he had a greater ability to pay her legal fees.

It was the Husband’s position that the Wife had run up his legal fees with her own unreasonable positions.  He also criticized her for choosing lawyers who are more expensive than those he chose to engage, arguing that he shouldn’t be held responsible for her choice to do so.

With this being a major impasse for the parties, it seems inevitable that a judge will decide the issue either in isolation or together with a trial on other unresolved aspects of their divorce.

Because the Family Court is a court of equity, a judge determining whether to award legal fees to one side has to consider the parties’ relative financial positions, including their respective incomes, assets, debts, support obligations, and other relevant financial circumstances.  The Court also must give due consideration to the question of whether one party acted unreasonably, or in bad faith, or violated court orders, or refused to produce discovery and therefore thwarted efficient resolution of the matter.  The Court Rule allows for consideration of legal fees already awarded by the Court, for whatever reason.  Perhaps there was a pendente lite contribution to legal fees for which the moneyed spouse should be credited.  Or, perhaps there is a history of court order violations for which fees were awarded as a form of sanction.  Whatever the reason, prior fee awards must be considered.

Ultimately, the question of whether one side must contribute to the legal fees of the other side is a question of fact, for which the Court must consider the following factors:

  1. The financial circumstances of the parties.  
  2. The abilities of the parties to pay their own fees or contribute to the fees of the other party.  
  3. The reasonableness and good faith of the positions advanced by the parties both during and prior to trial.
  4. The extent of the fees incurred by both parties.
  5. Any fees previously awarded.
  6. The amount of fees previously paid to counsel by each party.
  7. The results obtained.
  8. The degree to which fees were incurred to enforce existing orders or compel discovery.
  9. Any other factor bearing on the fairness of an award.

But here’s the rub.  Just like any other question of fact, the Court must make findings based on evidence.  In other words, there must be a trial or at least a lengthy written submission including evidence produced as exhibits.  As parties, you have to decide:  are you willing to incur the fees to try the issue, or is the amount in controversy going to exceed the fees you would spend to have the judge decide?

And, importantly, what you may view as a clear cut bad faith action or unreasonable position taken by your adversary, the Court may not be so inclined to think is all that bad.  Submitting the issue of counsel fees for a judge to decide is most definitely a gamble, and like any other wager, you should assess the odds, cost-benefit, and the possible outcomes before making the decision to fight the issue to the bitter end.


headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

All Hallow’s Eve is upon us.  All month long, I have watched my favorite Halloween movies (Hocus Pocus, anyone?), visited haunted houses, carved my Jack-O-Lantern, and engaged in all the usual Halloween festivities.  But it occurred to me:  the scariest thing that many of my clients will go through in their lives is their divorce.  And there’s a reason why the ghosts, ghouls, zombies, witches, and hobgoblins of Halloween are trotted out each year to scare us – that feeling of being up against soullessness and inhumanity is terrifying.  And it’s how many of my clients feel about the people they are dealing with through their divorce process, whether it be their ex and/or his/her attorney, a mediator, or even a judge.

Here’s what it can be like:

Zombies Abound:  It can feel like everyone you are dealing with is a soulless zombie – even your spouse.  Suddenly, your spouse may act with no emotion toward you and will forget like the past years of your life together never happened.  For example, according to him or her, you’re not the loving parent to the kids that you know you always were.  His or her attorney will treat you with no emotion at all, acting at the direction of your spouse.

Likewise, the judges, experts, and mediators – whether on your side or not – have a non-emotional role to play.  They won’t necessarily care about the personal issues that are important to you.  They will look at your case in an agnostic, non-emotional way.

Witches Cast Their Spells:  Sometimes, it might feel like there’s a hex upon you and you just can’t win.  Or, it may feel like no matter how untrue or manipulative your spouse’s claims are, the judge or the mediator believe him or her, as if (s)he’s cast a spell over them.  No matter the situation, it may sometimes feel like you have no control or that everything is going your spouse’s way, for no discernible reason.

Vampires Suck Your Blood:  Maybe this is a little too “on the nose.”  While your lawyers aren’t going to be doing unnecessary work, divorces get expensive.  If you are the “monied spouse,” you may be paying for not only your own legal fees, but those of your husband or wife – and not only for attorneys, but perhaps also for various experts, or a mediator/arbitrator.  All while continuing to support the family during the divorce.

Frankenstein Lives:  I often use the term “Frankenstein” when referring to an agreement of any kind that has been drafted, then revised, revised again, and revised some more.  It often becomes a mishmash of different thoughts that each party had at different points in the negotiation, and when taken together, makes little sense as a whole.  This is NOT what you want the ultimate written agreement (or any interim agreements) to be.

So, how do you keep your divorce from becoming a Halloween-style nightmare?  Here are some thoughts:

  • Hire a qualified, conscientious, attorney with a good reputation.
  • Listen  to that attorney.  After all, you hired him/her because (s)he is qualified, conscientious, and has a good reputation.
  • Take control of the story, and change it if you have to.  If you feel like nobody is listening to you, then whatever it is you are saying is not resonating.  For example, if you are claiming that your spouse should have less parenting time because your child has been returned to you from parenting time with bumps, scrapes, or bruises, and the judge is not moved by this information because he or she views them as typical for a child of that age…then maybe you need to try a different argument, if you have one.  Or, if you are arguing that you have tried and tried to find a new job after being fired from your old one, but just haven’t been able to find anything at your prior income level, then maybe you need to stop explaining and start showing the Court exactly what efforts you have made.
  • Keep the written agreement simple, and only make necessary revisions.  While every word in an agreement is important, trust your attorney to ensure that the agreement says what you want it to say.  Don’t over-complicate it just because you insist upon one word being in the agreement that is not there, and don’t give in to the feeling that the attorney on the other side is trying to “trick” you with revisions.  That’s why you hired a lawyer.  In the end, you want an agreement that is easily understood by a third party who knows nothing about your case, because if an issue comes up in the future, you may be assigned a judge who is just that.

 

 

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.

 

*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.

 

 

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.

 

 

*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.

 

 

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.

 

 

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.

 

 

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/

 

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.