Does Cohabitation Terminate Alimony?

Clients at the Law Offices of Adam C Brown Esq often have questions surrounding cohabitation and alimony. In New Jersey alimony is subject to modification, suspension or even termination with a  showing of changed circumstances. If an alimony payor can show that their former spouse remarries or “cohabits” with another person, then the payor can petition to the family court to modify, or even terminate alimony.

What is cohabitation? How to determine if cohabitation exists? 

“Cohabitation” does not simply mean that two people are living together on a full-time basis. To clarify the confusion in this area of law, in 2014, the New Jersey Legislature enacted N.J.S.A. 2A:24-23n, which outlines the legal definition of cohabitation.  Under current New Jersey alimony law, cohabitation “involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.”

To determine whether a cohabitation situation exists, New Jersey may consider certain factors, as well as “any other evidence,”  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.

The burden of showing cohabitation.

Until recently, due to the lack of clear instructions and interpretation of the statutory factors, trial court judges sometimes required the payor/applicant to prove all six factors set forth in the statute when determining if a prima facia case of cohabitation is established.  In Temple v. Temple, 468 N.J. Super. 364 (Super. Ct. App. Div. 2021), the Court guides that most information relevant to cohabitation is not readily available to the payor/applicant.  Too often, crucial facts are in the sole knowledge of the other party, for example, the payee’s bank account information and other financial information, and is often outside the control of the payor/applicant and therefore, cannot be obtained absent discovery.

Temple is an important decision for the payor/applicant seeking to terminate their alimony obligation based on cohabitation.  The Appellant Division notes that the statute contains a catch-all seventh factor, any other relevant evidence, the factors are a guide for courts to consider and  to help ascertain whether a mutually supportive personal relationship exists.  Temple finds that  that not all the factors needed to be present to prove a prima facia case of cohabitation.

Temple cautions family court judges to be careful not to permit a fishing expedition into a supported (payee) spouse’s private affairs on weak claims of cohabitation.  This very important point protects the privacy of the payee spouse, and even has its roots in our common law, as will be discussed below.

Issues arise when the alimony payor suspects his or her former spouse is involved in an intimate relationship with a paramour, and there is some evidence to suggest more than a causal dating relationship. Like, for example, a paramour’s car being parked in the payees driveway three days a week. Does this mean the alimony payor is off the hook from alimony? Can the payor now request court ordered discovery into the lives and finances of the payee spouse and the paramour?  Not that easy.

What Type Of Evidence Is Useful To Prove Cohabitation?

A common practice is to hire a private investigator who gathers evidence of cohabitation. Private investigators can conduct actual or video/still camera surveillance of the payee spouse.  An experienced private investigator will be able to obtain certain information that is not easily available to the general public, such as the owner of a car that is parked in the payee spouse’s driveway, a background check of the new cohabitant, or even the work routine/schedule of a new cohabitant. In the age of social media, private investigators will go as far as creating fake profiles to elicit information not otherwise available.

Common examples of evidence that may be useful to prove cohabitation are:

1. Pictures that showing the couple leaving the home together in one vehicle and going to such places as restaurants, gyms, doctor appointments, or other destinations.
2. Showing that the couple packing belongings into one car for the weekend, stopping for groceries, dinner, or another store, and heading to their common destination.
3. Social media posts that showing the couple regularly involved in family and social circles.  For instance, photographs of one person accompanying the children at their soccer practice, playdates, or photographs showing the person interacting with other family members.
4. Believe it or not, some good private investigators also examine discarded garbage that is placed at the curb before it is picked up. So long as the garbage is not located on the private property, and it is discarded for public pickup.
5. Certain records like one’s E-Z pass, which can reveal a person’s location from time to time.

The longer surveillance and other investigative activities continue and demonstrate ongoing activity of the couple, the more credible a court application will become.  The time frame for an investigator varies on a case-by-case basis, it surveillance can last one week, to over one year.

Brief History on Cohabitation 

Statutory authority for alimony was included with the creation of the original right to absolute divorce in this State in December 1794. Lynde v. Lynde, 64 N.J. Eq. 736, 751, 58 L.R.A. 471 (E. & A. 1902). Originally, divorce was possible in New Jersey not only on grounds of adultery and extreme cruelty but also “on account of the parties being within the prohibited degrees.” The latter [***6]  ground was eliminated in 1820, but permanent alimony was permitted again irrespective of the cause of divorce. Lynde v. Lynde, supra, at 752-753.  N.J.S. 2A:34-25 contains the mandatory requirement that the court terminate alimony if after the judgment of divorce a former spouse remarries or enters into a new civil union.

The issue naturally arose as to what happens when a former spouse resides with another and engages in a relationship tantamount to marriage? After all at the core of every marriage is a partnership, where rights to spousal support accrue for a dependent spouse in the event of a divorce. Marriage is much more than romance, it is economic security. “New Jersey requires that a dependent spouse receive alimony to assure maintenance sufficient to support that spouse based on the living standards of the couple during marriage.” . N.J.S.A. 2A:34-23; Innes v. Innes, 117 N.J. 496, 503, 569 A.2d 770 (1990); Koelble v. Koelble, 261 N.J. Super. 190, 192-93, 618 A.2d 377 (App.Div.1992). The primary purpose of alimony is to permit the spouse to share in the accumulated marital assets to which he or she contributed. Mahoney v. Mahoney, 91 N.J. 488, 500-01, 453 A.2d 527 (1982). Arguments as to contribution, financial, equitable, or otherwise becomes part of what the trial court considers in adjudicating an award of alimony, however, for purposes of this article, we focus on the reasons for modification of alimony based on cohabitation.

As indicated above, proving cohabitation is not easy. Looking at the case of Konzelman v. Konzelman, 158 N.J. 185 for example, the New jersey Supreme Court notes that:

Cohabitation is not defined or measured solely or even essentially by “sex” or even by gender, as implied by the dissent. Post at 205, 729 A.2d at 18, 1999 N.J. LEXIS 542 at *21. The ordinary understanding of cohabitation is based on those factors that make the relationship close and enduring and requires more than a common residence, although that is an important factor.  Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These can include, but are not limited to, living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores,  [***29]  and recognition of the relationship in the couple’s social and family circle.

Konzelman v. Konzelman, 158 N.J. 185, 202, 729 A.2d 7, 16 (1999).  Yet how does one prove that their spouse has a joint bank account, shared living expenses, and household chores without some modicum of invasion of privacy? Mr. Konzelman proved his ex-wife’s cohabitation after hiring a private investigator to watch Mrs. Konzelman’s home seven days a week for 127 days.

Sharpe v. Sharpe, 109 N.J. Super. 410, 415. After the entry of a divorce judgment ordering alimony, whether by way of settlement agreement between the parties or a determination by the trial court, historically the issue of maintenance and support implicates important statutory and policy concerns. For these reasons many practitioners implement an anti-modification clause in their settlement agreements, to avoid the rigorous analysis required to determine changes of circumstances that may modify support amounts after entry of the final judgment of divorce. A salient consideration for modification has always been cohabitation. In the Court’s dissent Justice O’Hern noted that the decision to uphold Mr. Konzelman’s anti-cohabitation clause encouraged “elimination of the need to examine changed economic circumstances or to retain control over the divorced spouse. Either way, there will be a price.”

In cases where the relationship is open, cohabitation is much clearer, our Courts focus is more on actual economic need. “It has long been held that alimony is awarded because of an “actual economic dependency” and not because of one’s status as a spouse.” Reese v. Weis, 430 N.J. Super. 552, (quoting  Lepis v. Lepis, 83 N.J. 139, 155, 416 A.2d 45 (1980). In fact, the Court held in In Ozolins v. Ozolins, 308 N.J. Super. 243, 245, 705 A.2d 1230 (App.Div.1998), “a showing of cohabitation creates a rebuttable presumption of changed circumstances shifting  [***24] the burden to the dependent spouse to show that there is no actual economic benefit to the spouse or the cohabitant.” A salient reason why the Appellate Division affirmed the trial court on the issue of whether alimony should have been completely terminated or reduced is because the payee spouse failed to sustain her burden of continued economic need. The quantity of continued economic need would have been factored into a potential reduction if the payee spouse could have clearly shown how much money is being contributed to her new household, from what source, and for the exact expenses. In Reese, the trial court found substantial commingling of finances, to the point where, without reconciliation of accounts, the trial court was unable to determine the quantity of continued independence of the payee spouse. If the payee spouse could have shown the economic benefit from her cohabitation down to an exact quantity, alimony may not have been completely terminated, and simply reduced.

            Cohabitation is a fact-sensitive inquiry analyzed on a case-by-case basis.  If you have any questions related to cohabitation, alimony, or any of the above, please feel free to contact A.Brown Esq. LLC for a consultation.

Written by Adam C. Brown, Esq.