Date: February 13, 2016

The law on the impact of cohabitation on the entitlement to alimony has changed. The law had required that two people live together in a relationship tantamount to marriage before that relationship could terminate a payor’s obligation to pay alimony to a former spouse.   Then the standard evolved into whether there was comingling/sharing of economics.   The new Statute, which became law about a year ago, amending the prior Statute, puts us in uncharted territory. The new Statute says:

N.J.S.2A:34-23. Alimony, maintenance.

Alimony may be suspended or terminated if the payee cohabits with another person. 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.  When assessing whether cohabitation is occurring, the court shall consider the following:

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 within this meaning
of subsection h. of R.S.25:1-5; and
7. All other relevant evidence.

In evaluating whether cohabitation is occurring and whether alimony should be suspended or terminated, the court shall also consider the length of the relationship. A court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis.

The key word in the entire Statute is “may”. In the first sentence, it says “Alimony may be suspended or terminated.” There is no clear cut determination of when alimony should be impacted by a recipient’s relationship with a third party. This statute is vague and provides little direction and massive discretion.

The parties do not have to live together to be deemed to be cohabitating under this Statute in order to have it impact the alimony.  As a result, the new Statute could impact a dating relationship with frequent sleepovers. Courts have a broad discretion in these matters to determine how to handle a payor’s support obligation in a situation where a divorced recipient has a significant other. One of the problems is the cost of litigating the issue.

Ultimately, this issue will be addressed by the proofs that each party can provide with regard to the economic relationship between the recipient and the significant third party. This will involve the use of detectives and witnesses. Once the issue is raised and the burden of proof met to show that there is enough to establish a relationship both the recipient and the third party need to realize that they may have to show their financial records to be able to have it determined whether or not there is a comingling of money. This alone can be an invasive enough request that sometimes to avoid the discovery a resolution can be achieved. The Statute requires more than a holiday dinner but there is no clear understanding of exactly what is required. Common sense would say that there needs to be sharing of money including accounts, expenses, and an ongoing relationship where the parties have significant overnight time together.

However, due the fact sensitive findings required by the Statute, there is no way to guarantee what the outcome will be when the issue is raised. The analysis will be costly to determine whether there should be a change. Unless an agreement is reached quickly the parties will wind up in a mediation setting or possibly after costly depositions, in court. An application to a court will probably require a plenary hearing, which is basically a mini trial, to assess the facts each side presents. A court would not be able to decide such an issue on Certifications, as it is anticipated there would be a disparity in the facts which could not be resolved from a reading of conflicting papers.

The recipients of alimony and the people they date, as well as the payor, need to recognize that more than a dating relationship is required or a third party putting the garbage out. However, less than a full blown living together situation needs to be proven with expenses shared. It is unfortunate that the Statute is drafted in this way. It is unfair to take alimony away from a recipient just because the recipient’s spouse is being social. One of the complaints of litigants is that the payors can do what they want, and the recipients cannot. However, the payor’s behavior is not relevant to the analysis.

Therefore, the recipients need to be careful to keep separate financial accounts, not to join Clubs as a couple, or do things that appear as if they are a unit economically and socially. Under this statute it might not be recommended for a recipient and their significant other to even host a large party together. A payor is still going to have to gather evidence to present potentially with the use of a detective to show that the parties are staying together with frequency. Does the third party have a genuine separate residence? Do they keep their finances separate?

All this requires good lawyering to assess the facts and make the best arguments and have the issues addressed in an efficient way.

It will take time for new case law to develop. While there have been cases that have been decided since the Statute was enacted, the applicable law in those cases was the old law which is no longer in effect. Therefore, there is no direction other than the Statute as to what behavior is definitely going to trigger a modification of alimony. Again, the stronger the proofs, the more likely there will be a suspension or limitation. The Statute does not specifically provide for a modification of the amount but doesn’t preclude such a result.