Proving Cohabitation? It's Not Really as Easy as You Think


You divorced only a couple of years ago.  At the time, you and your husband came to an agreement about alimony payments.  Later, the judge included the terms when he granted your divorce.  Spousal support was set for an end date, which would terminate earlier if your ex had a lover move in with him.  However, you were also warned.  You needed to prove cohabitation in order to achieve early relief from support obligations.

All things considered, you figured you were the exception instead of the rule.  At the time, you remembered reading an article that said only three percent of men received alimony.  However, you decided to literally grin and bear it.  That is until someone informed you that there was a new lady in residence at your old house.

Like most people, you already have some idea concerning what constitutes cohabitation.  What really matters is what the law says.  According to NJSA 2A:34-23(n), “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.”

Meanwhile, the Legislature attempted to clarify further what proofs are necessary to end alimony because the recipient is cohabiting with a new partner.  Some of the critical considerations include:

  • Joint bank accounts or other financial holdings
  • Shared or collective responsibilities for living expenses
  • Recognition as a couple by family and friends
  • Couple live together or enjoy frequent contact
  • Household chores jointly divided

In some respects, it might seem easier than you expected to prove cohabitation.  After all, the law seems to say that the couple does not even have to live in the same house.   Meanwhile, a recent New Jersey case speaks directly on point.

Proof of Cohabitation Not Established

The New Jersey Appellate Division recently considered a case involving termination of spousal support based on an allegation of cohabitation.   Gille V Gille,  NJ Appellate Div. 2018 is an unpublished decision, and therefore the outcome only applies to the named parties.

First, some basic information about the statement of facts recited by the court.  The couple divorced in 2011 and have four sons.  At that time, they executed a matrimonial settlement agreement (MSA), which set baseline alimony to Mrs. Gille at $135,000.  Both alimony and child support obligations were subject to increase if Mr, Gille’s income rose to particular levels.  (One of the issues in the post-judgment motions was that Mr, Gille failed to supply financial records in accordance with the MSA).

In any event, Mr. Gille attempted to relieve himself of his support obligation by suggesting that his ex-wife was living with someone else.   For a 90 day period during 2015, Mr. Gille hired a private detective to surveil his former spouse.   He produced evidence that there were thirteen separate occasions that the male visitor stayed the night.

Additionally, Mr. Gille’s private investigator documented times when the alleged boyfriend retrieved mail and helped shovel the snow with one of the parties’ children.  Proof was also provided showing that the male visitor entered the home even when Ms. Gille and the children were not on the premises.

Despite these allegations, the court found that Mr. Gilles had not proved his ex was cohabiting with someone else.  For one, there was no evidence that their financial assets were intertwined.  Although the couple admitted they were dating, they did not refer to themselves as boyfriend and girlfriend.  Also, there was no proof that the two shared living expenses. 

The trial court judge who heard the case found that there were only a few times that the male visitor actually helped in Ms. Gilles’ home.  The efforts were more chivalrous than anything else.  In the end, the court found that the relationship did not meet the standard to prove cohabitation.  The Appellate Division agreed.

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