Alimony in New Jersey is subject to modification, suspension or even termination if an alimony payor can show that their former spouse is cohabitating.

What Is Cohabitation?

Most understand that alimony will cease if a former spouse receiving alimony gets remarried. Cohabitation, on the other hand, occurs when a divorced party doesn’t legally remarry, but chooses instead to enter  a mutually supportive and intimate personal relationship, which is normally associated with marriage.

Some of these cohabitating former spouses delay or forego marriage by design, knowing that their alimony will cease if they take the next step and remarry.

In order to counteract this possibility, the legislature in New Jersey has enacted a law which allows alimony payors to seek to have their alimony obligation decreased, suspended, or even terminated if they can prove that their former spouse is cohabitating.

Courts assessing whether cohabitation is occurring must take into consideration a series of non-exclusive factors, including:

1. Intertwined finances such as joint bank accounts and other joint holdings or liabilities;

2. Sharing or joint responsibility for living expenses;

3. Recognition of the relationship in the couple’s social and family circle;

4. Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;

5. Sharing household chores;

6. Whether the recipient of alimony has received an enforceable promise of support from another person; and

7. All other relevant evidence.

This doesn’t necessarily mean that the couple needs to be living together full-time for a court to find that a cohabitative relationship exists, rather, the courts will consider the factors above when determining whether a couple is cohabitating.

How Difficult Is It for an Alimony Payor to Prove Cohabitation?

The answer to this question is often sensitive to the particular facts in any given case. Importantly, however, the burden is on the alimony payor to prove that the cohabitation is occurring and that the cohabitation is a substantial change in the financial circumstances from which the alimony was based.

In the majority of cases, the alimony payor is aware the alimony recipient is dating someone. The kids may report that the paramour is staying overnight at the house often or has moved in. Perhaps they post their vacation photographs on social media. But how does someone who may not have an amicable relationship with their former spouse find out if they share living expenses, bank accounts, and/or have otherwise intertwined finances? Most of the time, that information is not even remotely accessible to a former spouse.

How then does a spouse obtain this information? In order for a payor spouse to obtain even the ability to seek discovery (a broad term referring to the compelled disclosure of information and documentation) from their prior spouse for cohabitation, they first carry the burden of demonstrating to the Court that cohabitation is likely occurring. If the payor spouse cannot meet that burden of production, the Court can deny them discovery.

Conceptually, this places the payor spouse in a difficult if not impossible situation. In order for the payor spouse to obtain the evidence they do not have available to them that their former spouse is cohabitating (as defined with the factors above), they must first demonstrate that cohabitation is likely occurring?

What the payor spouse actually has to show in order to obtain the ability to garner discovery and find out what is really occurring has been ambiguous and unevenly applied from case to case, with each judge deciding these issues with very little guidance as to how much evidence is enough to be able to move forward in the case and obtain discovery.

While the investigation and presentation of all available evidence remains critically important to the success of any case, a recent decision, Temple v. Temple, has leveled the playing field to some degree.

What Has Changed and How Does It Help Alimony Payors?

The facts in Temple are not uncommon in cohabitation disputes. A husband and wife divorced after a lengthy marriage with an agreement in which the husband was to pay permanent alimony to wife. Sixteen years later, the husband filed an application with the court to terminate his alimony obligation, alleging the wife had either remarried or was cohabitating with a man whom she had been in a long-term relationship post-divorce.

The wife filed a written response with her own alleged explanations as to her relationship with the gentleman, and alleged she was neither remarried nor cohabitating with him as defined by statute. The trial judge, incorrectly, accepted the wife’s written explanation as true and denied the husband’s application. In doing so, the husband was prevented from conducting discovery and obtaining disclosure of information and/or documentation which may have provided him with further evidence of the wife’s cohabitation.

The husband filed a successful appeal, and the Appellate Division reversed the trial court’s denial and remanded the case to allow husband the opportunity to seek discovery and an evidentiary hearing. In doing so, the Temple court clarified how trial courts need to approach allegations of cohabitation and under what circumstances discovery will be allowed.

While prior caselaw had given the impression that trial courts should only allow discovery if a high burden of proof was initially satisfied and substantial evidence was independently obtained by the alimony payor, Temple now appears to have lowered that bar substantially.

The decision in Temple is significant, and likely will allow many more alimony payors to succeed in obtaining rights to discovery from their ex-spouse to obtain evidence they would have otherwise been prevented from obtaining to rightfully prove their case and have their alimony properly reduced, suspended or terminated.

Success in cohabitation litigation largely depends on the proper timing of your filing as well as the investigation and precise presentation and application of the facts in your matter to applicable law.