Richard Allan Nocks, Esq., is a New Jersey attorney committed to representing clients in Family Law cases. Focusing on Divorce, Post-Divorce, and all other aspects of Domestic Relations, we use our expertise and skills to fully meet our clients’ unique needs and concerns.
Establishing a case of “cohabitation”
What happens when an ex-spouse is paying alimony to a former spouse, and at some point, the former spouse becomes involved with a new partner, paramour or romantic relationship? Can the “payor” spouse seek to terminate his/her obligation based on the former spouse’s new relationship? Or is the new relationship nothing more than a casual or dating one?
Obviously, a formal remarriage would result in a termination of that support. However, what if the relationship has not yet resulted in an actual marriage but is perhaps much more than a casual dating relationship.
One of the more difficult situations in a post-divorce setting is establishing that an ex-spouse is “cohabitating” with a partner. Usually, this issue comes up when the ex-spouse who is paying alimony/support wants to terminate (or at least suspend) that obligation because the former spouse a new partner, companion or paramour. It’s not always clear if cohabitation is occurring, and presumably, the former spouse would certainly argue against termination or suspension of the alimony.
Our statute, N.J.S.A. 2A:34-23(n) provides that when assessing a claim that cohabitation is occurring, the court should consider (1) intertwined finances of the former spouse and the paramour, companion or partner; (2) the sharing of their living expenses; (3) social recognition of the relationship by others; (4) if the couple is living together, frequency of contact, duration of the relationship, and other indicia of a mutually supportive intimate personal relationship; (5) sharing of household chores; (6) whether the recipient of alimony has received an enforceable promise of support from another person, and (7) all relevant evidence. Fortunately for the payor, the statute also provides that a court may NOT find and ABSENCE of cohabitation solely on the grounds that the couple may not be living together on a full-time basis.
In a published case from 2021, Temple v. Temple, 468 N.J. Super. 364 (Appellate Division 2021), the former husband moved to terminate his alimony obligation by alleging that his ex-wife either remarried or was cohabitating with a companion. The appeals court held in summary: (1) that N.J.S.A. 2A:34-23(n) does not require that the husband needed to prove all six factors as listed in the statute in order to initially establish cohabitation, and (2) to establish an initial case for cohabitation, the husband would have to prove that the ex-wife are in a mutually supportive intimate personal relationship in which they have undertaken duties and privileges that are commonly associated with marriage or a civil union. In the Temple case, the husband was able to at least show an initial indication that his ex-wife was “cohabitating” under the statute, and was therefore entitled to move forward with discovery and a full trial on the matter. The Appellate Division sent the case back to the lower court for trial.
There is a cautionary issue, however: In Temple, the ex-husband relied on surveillance conducted by a private investigator. I am very wary of recommending this kind of surveillance tactic because allegations of stalking can arise. To be sure, “stalking” is a basis for a domestic violence complaint and the issuance of a restraining order. One must be certain to not cross that line because it will take on a life of its own. I suggest that a consultation with counsel take place so that the entire history may be analyzed, and the proper application be made.
