Discover What It Really Takes to Prove Cohabitation

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When the court ordered you to pay alimony, you weren’t exactly pleased. However, you’ve respected your obligation and always paid on time. Meanwhile, it appears that your former spouse has a live-in lover. Will proving their cohabitation put an end to your payments? Possibly. However, it’s not as easy as you might think.

In the simplest of terms, most people think of cohabitation as two people living together as though they were married. Meanwhile, New Jersey’s alimony statute provides a formal definition of cohabitation, found in NJSA 2A:34-23(n) as involving :

…. 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.

More than likely, it’s the last line of the statutory language that comes as a surprise to many. That said, a great deal goes into determining whether alimony should stop temporarily or end completely based on issues regarding cohabitation.

Assessing Cohabitation

In the meantime, you could be worried that your former husband or wife wants to terminate your alimony. However, the court considers several factors in assessing cohabitation, including evidence of 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

  

The court may also review other evidence in making determinations regarding stopping spousal support based on allegations of cohabitation. The length of the relationship proves critical. And, just because the new couple doesn’t live together full-time means the court will find an absence of cohabitation.

Recently, the New Jersey Appellate Division ruled on a case that you may find of interest. The court’s unpublished decision in Wood v. Wood provides some interesting insight into the issue of cohabitation.

Ex-Husband Wanted to Terminate Alimony Obligation

The Appellate Division decided the Wood case on May 16, 2019. The matter does not represent new law, and its use is limited because it is not a precedential decision. However, it is binding on the named parties.

Wendy S. Wood and Alan R. Wood married in 1993. Although they had children, they were emancipated at the time of the divorce in 2016. Under the terms of their property settlement agreement (PSA), Alan agreed to pay Wendy $525 per week in limited duration alimony.

The alimony payments were set to begin on September 13, 2016, and extend for a period of ten years. Meanwhile, the PSA also indicated that spousal support would end if Wendy remarried or either party died. Lastly, “alimony could be "modified or terminated in accordance with NJSA 2A:34-25 and... existing case law."

Fifteen months after their divorce was finalized, Alan filed a post-judgment motion. As far as he was concerned, Wendy was cohabitating with her boyfriend and he should be relieved of paying her alimony. In case that didn’t work, Alan cited a change in circumstances warranting discovery as a reason for modifying or ending his obligation to pay spousal support.

Evidence of Cohabitation

According to Alan, he first learned his ex-wife was living with her boyfriend in the fall of 2016. He decided to enlist the services of a private investigator to document his suspicions.

The court identified the alleged boyfriend solely by the initials “K.C.” in its legal decision. Alan’s motion papers attached a cohabitation report dated November 17, 2017. It included documentation of the following:

  • Public records searches showed K.C.’s name associated with the marital residence and Wendy’s new condo in Howell.
  • K.C.’s driver’s abstract and voter registration profile reflected Wendy’s Howell address.
  • During multiple surveillance visits, the investigator noticed an individual presumed to be K.C. at Wendy’s condo during both early morning and afternoon hours.
  • K.C. used his own set of keys to get into the condo and to access the locked mailbox.

The cohabitation report contained further information regarding the investigator’s observations. K.C. would leave the house as early as 5am to catch a bus. When it rained heavily one morning, Wendy and K.C. left the condo together at approximately 5:25 am.

Although the investigator reported seeing the couple exchange kisses on a couple of occasions, there was no photographic or video evidence. Reportedly, the actions happened quickly and were brief.

Roommate, Not Boyfriend

When confronted with the allegations, Wendy said that K.C. was her roommate and not her boyfriend. She needed someone to share the rent because she couldn’t make it on alimony payments. Wendy added that she was unable to work because of multiple disabilities and had not yet received disability benefits.

According to Wendy, she and K.C. each executed separate lease agreements for the two-bedroom condominium. They agreed to become roommates because it relieved the financial burden on both of them. Wendy denied that she was romantically involved with K.C. or that their finances were intertwined. Even her social media posts were void of any suggestions the two were a couple.

In support of her denial that she and K.C. were a couple, Wendy offered the court additional information. When she had brain surgery on July 27, 2017, K.C. did not help care for her. Instead, Wendy’s close family and friends came to stay at the residence and provide her with help.

K.C. and Wendy’s son both submitted certifications confirming that that K.C. and Wendy were not romantically involved.

Alan responded to Wendy’s submission, and the two went back and forth regarding the allegations of cohabitation.

Court Rules

Upon consideration, the court ruled on the assertions made by both parties. The trial judge agreed that there was “some indicia of joint responsibility for living expenses, at least rent.” However, there was no proof submitted regarding Wendy’s financials that suggested she was cohabitating with K.C.

The court acknowledged that the investigator claimed he observed Wendy and K.C. kissing but did not provide demonstrative proof. Apparently, Alan also referenced Facebook posts showing the two acting like a couple but didn’t supply them to the court as evidence.

Simply stated, Alan did not prove cohabitation and was therefore not entitled to terminate or suspend his alimony obligation. The court also denied Alan’s request to exchange discovery and a plenary hearing.

Alan appealed the ruling because he felt it was undisputed that Wendy was living with someone. He submitted there were “material issues of disputed facts relevant to the issue of cohabitation." For that reason, he thought a plenary hearing was in order. Additionally, he could not obtain Wendy’s financials unless the court allowed discovery.

The Appellate Division disagreed, stating that, “an alimony payor who alleges cohabitation must first present a prima facie case that his or her former spouse is in such a cohabiting relationship tantamount to marriage.” 

The proofs submitted in this case regarding cohabitation were not enough.  The Appellate Division pointed out that it was not enough to show that Wendy and K.C. lived in the same place. Meanwhile, nothing prevents Alan from renewing his application with supplemental evidence.

Contact Us

Even after the divorce papers are signed, you may need to return to court. The Law Offices of Sam Stoia has extensive experience handling post-judgment motions.  Give us a call to review your circumstances. We offer a one-hour complimentary consultation.