Alimony Can Be Terminated Through Several Means
Docket No. A-4923-18
Decided December 21, 2021
Submitted by New Jersey Divorce Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division reviewed a trial court’s termination of plaintiff’s alimony obligation based on the terms of the parties’ Property Settlement Agreement (PSA) and plaintiff’s disability.
In Kowal, The parties were divorced in 2005, following a twenty-five-year marriage. They entered into a Property Settlement Agreement (PSA) wherein plaintiff agreed to pay $400 per week in permanent alimony based on earnings of approximately $110,000 per year and imputed income to defendant of $35,000 per year.
The PSA contained the following relevant provision:
Cohabitation by [defendant] shall be an event subjecting alimony to a review consistent with existing case law. [Plaintiff’s i]nvoluntary [l]oss of [e]mployment, other than temporary, shall be an event subjecting alimony to a review consistent with existing case law. In the event [plaintiff] is permanently disabled, as defined and to the extent payable by his disability insurance policy, it shall be an event subjecting alimony to review, recalculation derived only from proceeds from said disability insurance policy.
In 2011, defendant moved for entry of a qualified domestic relations order (QDRO) dividing plaintiff’s pension, alleging she was entitled to equitable distribution. She also sought an increase in alimony and other financial relief based on plaintiff’s alleged increased income. Plaintiff opposed the motion.
The court granted defendant’s motion, ordered the QDRO, and increased alimony. Plaintiff sought reconsideration and provided proof the pension benefits were an ordinary disability retirement allowance and not a pension payout and that the allowance did not vest during the marriage. He also argued the parties agreed only plaintiff’s disability insurance proceeds could be used to calculate alimony. Defendant disputed plaintiff’s claims and income.
The trial court reconsidered, denied equitable distribution of the pension, and directed the parties to file updated Case Information Statements (CIS) to recalculate alimony. Plaintiff submitted a CIS; defendant did not. The court calculated alimony in accordance with the PSA, using only the disability policy proceeds, and reduced alimony to $655.21 per month.
In 2016, plaintiff moved to modify or terminate alimony on grounds of cohabitation. He attached social media postings showing defendant had a romantic relationship and cohabited with Daniel Opielski beginning in March 2015. Plaintiff alleged Opielski paid defendant’s living expenses, which reduced defendant’s need for alimony. Plaintiff’s CIS showed his only sources of income were disability insurance and the ordinary disability retirement pension. The trial judge found plaintiff established a prima facie case of cohabitation and scheduled a plenary hearing.
The judge rendered a detailed written opinion finding the witnesses were credible, except for defendant and Opielski. The judge noted defendant stipulated to cohabiting with Opielski. He also found other credible evidence of cohabitation, namely, the social media posts in which defendant and Opielski held themselves out as a couple in an “exclusive . . . stable, persistent, and permanent” relationship. He found defendant benefitted from the cohabitation because it “substantially reduc[ed] her shelter costs[,]” and significantly increased her account balances. He noted that on cross-examination, “defendant acknowledged that the benefits to her from living with . . . Opielski exceeded $2,700 per month, including eliminated mortgage payments and homeowner association dues, utility bills, repair and maintenance, and other lesser home maintenance costs.” The judge noted even if the deposits to defendant’s accounts were excluded, “defendant still benefits from cohabitation by more than $1,700 per month.” The judge found Opielski benefitted economically from the cohabitation because defendant contributed her income to his shelter expenses.
Plaintiff’s alimony obligation was terminated and defendant appealed. The Appellate Division affirmed for the same reasons provided by the trial court, finding defendant was cohabiting and the cohabitation helped significantly with her expenses.
This case is important to understand that alimony can be terminated through several means. One is through agreement and an end date or termination event. Here, plaintiff’s disability caused plaintiff’s alimony to be decreased, which itself could be grounds for termination outside of an agreement. Cohabitation is another means, which ultimately terminated plaintiff’s alimony obligation here. To terminate alimony through cohabitation, the movant must show prima facie showing of cohabitation and that the spouse is also receiving an economic benefit.
If you have any questions about cohabitation, disability, child support, alimony, student loans, divorce, counsel fees or any other issues, contact the experienced attorneys at Hark & Hark today.
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