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.
Good news if you want to end alimony based on your ex-spouse’s cohabitation
Good news if you are paying alimony to your ex-spouse and suspect him/her of cohabitating with a partner. The New Jersey Supreme Court finally ended a catch-22 for those trying to end their alimony obligation based on the ex-spouse’s cohabitation: The payor ex-spouse was unable to establish an initial case because he/she did not have formal discovery to ultimately prove the case for cohabitation; but on the other hand, payor could not request that a court grant permission for discovery because the payor had not shown the proofs needed to show cohabitation. That has been a significant catch-22 for years.
In the recent case of Cardali v. Cardali, 255 N.J. 85 (August 8, 2023), the Supreme Court held that proof of a financial relationship between an ex-spouse and another does NOT require up-front or immediate evidence of a financial relationship if there were other criteria pointing to an intimate relationship suggesting cohabitation. In other words, initial (or threshold) evidence of an actual financial relationship between the ex-spouse paying the alimony and the ex-spouse receiving alimony is not prerequisite to discovery; since such a showing may be impossible without discovery, the Court held that there may be enough other proofs to permit more in-depth discovery which could prove the cohabitation.
Therefore, if a movant seeking to prove cohabitation as ground to suspend or terminate alimony, and presents a certification supported by competent evidence as to at least some of the relevant cohabitation factors, and if that evidence, if unrebutted, would sustain the movant’s burden of proof as to cohabitation, the trial court should find that the movant has made a showing of cohabitation.
This case can make the absolute difference in whether or not a paying ex-spouse can ultimately prove cohabitation to terming his/her alimony obligation. It means that if a post-divorce motion is filed to terminate alimony based on cohabitation, it could be easier to convince a court to permit more in-depth discovery pertaining to that other spouse’s cohabitation. It gives the paying ex-spouse hope to finally end an ongoing alimony obligation by having the opportunity to uncover more hard evidence to show the court.
