Alimony and Cohabitation

When alimony is involved in a family law matter in New Jersey, most clients want to know when and how it could end. One of the primary ways alimony will terminate is if the party who is receiving alimony payments decides to enter into a close and personal relationship where there is a level of financial dependency upon the other. In most courts, this would meet the definition of cohabitation in the state of New Jersey.

The New Jersey statutes define cohabitation as an intimate relationship that is mutually supportive. This means that a couple has taken on duties or privileges that are often associated with the formalities of a marriage of civil union. This definition came from the alimony reform statutes passed by Chris Christie in 2014 and made it significantly easier for paying spouses to assert cohabitation by their former flames. That is because, despite its name, this cohabitation definition does not necessarily require that the couple is living together for the court to find cohabitation for purposes of alimony considerations. Instead, the court has to look at multiple factors.

Usually, it is financial. If the couple shares joint bank accounts, joint credit cards or other financial holdings, they might be found to be cohabitating. If they share living expenses, like splitting utilities or agreeing to use one account for household bills, this could meet the definition of cohabitation. But there are other, softer factors the court can consider. For instance, if the couple is recognized as a serious couple in family and social circles, or whether the couple is actually living together. The frequency of contact and duration of the relationship is another factor, as well as any evidence the couple shares household chores.

In a nutshell, because the dependent spouse appears to have another source of financial support, it could result in their alimony award being decreased or terminated completely. For cases covered by the amended alimony statute the courts can only suspend or terminate alimony and cannot modify. However, the burden is on the spouse paying the alimony to demonstrate to the court that the recipient is, in fact, cohabitating with another person. You might be required to request bank statements, rental agreements, or other documents proving cohabitation through a process called ‘discovery,’ which is difficult to achieve in some cases, as explained below. However, if it means the requirement to pay alimony, this might be worth the investment.

First, before you can get the court to agree to ‘full-blown’ discovery in a case, the moving party has to prove that there is a prima facie case of cohabitation. Prima facie sort of means at first glance, so if there is, at first glance, a suggestion that the other party is cohabitating with another, you might have grounds to ask for full discovery to further cement your claims. One case has held that even in a long-term relationship when the parties were spending only about 100 nights together – less than a majority of the year – there was no prima facie evidence of cohabitation, particularly without any more evidence like joint bank accounts, or shared living expenses.

One increasingly common way to show prima facie evidence of cohabitation is for the paying spouse to do some sleuthing on social media accounts like Facebook, Twitter or Instagram. If the parties check in together frequently at hotels or on vacation, this can demonstrate to the court that the couple frequently spends time together, that they spend money on the other, and that other family members (like children) or friends have shared the relationship as well. Make sure you are gathering this information legally. If you have any questions about how you can legally ‘spy’ on your ex-spouse for alimony purposes, get in touch with a family law attorney who can give you guidance.

It is always helpful for parties, when contracting, to provide definitions for any terms that might be subject to a dispute further down the line. Otherwise, without a formal definition, the court will revert to the statutory definition of cohabitation, which might be far more limiting (as the plaintiff in the above-described case would agree).

First, in J.S. v J.M., the parties were divorced in 2010, and in their settlement agreement, they included a provision that alimony would terminate upon cohabitation with an unrelated male in lieu of remarriage for at least thirty days. In 2015, the husband filed to terminate alimony on the grounds that his former spouse was cohabiting with his brother. Interestingly, the petition to terminate was filed just after the alleged relationship ended – not during. So, there was a question of whether the paying spouse can get any relief if he or she files after the relationship has ended? In Quinn v Quinn, if a settlement agreement provided for termination of alimony upon cohabitation, then the court should be required to enforce that agreement and terminate alimony, rather than simply suspend it during the period of cohabitation – meaning the paying spouse would still be on the hook in the future should the relationship end. However, the appellate court in J.S. determined that there was no cohabitation at all, and therefore, Quinn did not apply.

If you have more questions about New Jersey’s cohabitation definition and how it could affect alimony payments in your case, get in touch with the Law Offices of Peter Van Aulen today. You’ll receive a free initial consultation by calling 201-845-7400.