Denial To Modify Alimony When There Is a Prima Facie Showing of Cohabitation
Docket No. A-0408-20
Decided January 14, 2022
Submitted by New Jersey Divorce Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division of New Jersey affirmed a trial court’s denial of a motion to modify alimony, finding the movant had made a prima facie showing of cohabitation and there was nothing more presented than a dating relationship.
In Manley, Plaintiff and defendant divorced in 2016. As part of their final judgment of divorce, the parties executed a Marital Settlement Agreement (MSA), obligating plaintiff’s payment of alimony to defendant. The MSA provided plaintiff’s alimony obligation
shall irrevocably terminate upon . . . [defendant]’s cohabitation with someone in the manner of Husband and Wife for a three (3) month period, regardless of the amount of financial contribution by the other party. [Defendant] has an express duty to inform [plaintiff] when she is cohabitating; if she fails to do so, all alimony paid during the period of cohabitation shall be refunded retroactively . . . .
Because plaintiff believed defendant was cohabitating, he hired a private investigator. In 2020, based on the investigator’s findings, plaintiff filed a motion to terminate alimony, alleging defendant was cohabitating with Sam. Plaintiff included a written report and photographs from the investigator in support of his motion.
Defendant opposed plaintiff’s motion. In her certification, she admitted dating Sam but denied the two were cohabitating. According to defendant, she did “not live under the same roof” as Sam and they “maintained completely different households.” She further certified they did not “intertwine [their] finances.” While defendant acknowledged Sam moved to the same town where she maintains her home, defendant claimed he did so for reasons related to his own family situation.
The trial court initially granted the motion in part, finding a prima facie showing of cohabitation and ordering financial discovery. Defendant moved to reconsider and the Judge did reconsider the decision, finding no prima facie showing because Defendant admitted to using Sam’s wholesale club card but explained she reimbursed Sam for the expenses attributable to her use of the card. She also responded to her use of Sam’s country club privileges, indicating she attended club activities solely as Sam’s guest. While defendant and Sam assisted each other in carrying groceries, defendant certified each paid for their own groceries. Regarding attendance at the children’s sporting events, defendant explained Sam attended ten hockey games over three years. Concerning traveling with Sam, defendant claimed they travelled “like a couple in a dating relationship” with each person paying his and her own travel expenses.
Plaintiff appealed the denial and the Appellate Division affirmed for the same reasons.
In order to show cohabitation, the movant must make an application and present evidence of the following six factors:
(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 circles;
(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 within the meaning of [N.J.S.A. 25:1-5].
Upon making a prima facie showing of cohabitation, the trial judge should permit financial discovery, as the evidence contained in some of these factors is not available publicly. Once financial discovery occurs, the court will conduct a trial to determine whether cohabitation is occurring based on the above six factors.
If you have questions about alimony and cohabitation or remarriage, contact the experienced matrimonial divorce attorneys at Hark & Hark today.
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