Cohabitation Is One Path to Terminate an Alimony Obligation
Docket No. A-5029-18
Decided March 22, 2021
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division reviewed a dismissal of a motion to terminate alimony based on cohabitation because defendant failed to show evidence of comingled funds and any further evidence that the individuals were residing together.
In Clemas, the parties divorced in January 2013, after fourteen years of marriage. They had two children together. The trial court entered a final judgment of divorce in June 2014. Pursuant to the final judgment, defendant pays plaintiff $2,500 per month in alimony.
Defendant filed an initial motion to terminate alimony in late January 2019, alleging plaintiff cohabitated with “her significant other,” M.M., 1 based upon their “long-standing significant relationship of at least [seven] years.” Defendant withdrew the motion for the parties to attend mediation, which proved unsuccessful. In April 2019, defendant re-filed the motion, including a request for a plenary hearing.
In support of his motion, defendant provided a certification detailing the relationship between plaintiff and M.M. According to defendant, they “travel together, they vacation together with our kids, [they] spend weekends together,” and “our kids spend holidays” with M.M. and “[his] family at his residence.” Defendant also hired a private investigator, whose report details two instances of M.M. visiting plaintiff’s home and five photographs of plaintiff and M.M. together on Facebook.
The trial judge denied defendant’s motion, ruling that defendant failed to establish a prima facie showing that the plaintiff and M.M. were cohabitating, let alone comingling finances. Defendant appealed and the Appellate Division affirmed, finding that defendant had to show more than Defendant was in a relationship. Defendant had to show at least some proof that they were residing together.
Cohabitation is one path to terminate an alimony obligation. In order to prove cohabitation, there must be a prima facie showing of 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. Factors to be assessed include:
(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 . . . ; and (7) All other relevant evidence. N.J.S.A. 2A:34-23(n).
A mere romantic, casual or social relationship is not sufficient to justify the enforcement of a settlement agreement provision terminating alimony.
If you believe your situation warrants a modification of alimony, contact Hark & Hark today. We are experienced in all areas of family law, including cohabitation, domestic violence restraining orders, prenups, divorce, custody, domestic violence, child support, alimony issues and more.
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