In Order to Show Cohabitation, the Movant Must Make an Application and Present Evidence of Six Factors
Docket No. A-0350-21
Decided April 3, 2023
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In a recent unpublished decision the Appellate Division of New Jersey affirmed a trial court’s denial of a motion to modify alimony, finding the movant had made a prima facie showing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 but there was no proof of comingling of assets.
In Lombardi, the parties were married for twenty years when Lisa filed for divorce in 2010. After a twenty-five-day trial, the court entered a dual judgment of divorce (DJOD) and ordered Anthony to pay $7,600 per month in alimony, as well as child support.
Five days later, Anthony filed an application to terminate his alimony obligation, alleging Lisa was cohabitating with Edward Hershman. He also sought reimbursement of $1,816,704 in alimony he paid after a 2014 date he alleged the cohabitation began. Alternatively, Anthony sought reimbursement of $1,050,624 in alimony he paid after an alternate date in 2017 on which he alleged the cohabitation began.
The court determined that Anthony made a prima facie case of cohabitation based on hundreds of photographs taken by an investigator over a long period and scheduled a plenary hearing.
After a twenty-two-day hearing, the trial court issued a forty-five-page written opinion concluding that Lisa had established she had not cohabitated with Hershman. It found that Anthony “provided absolutely no evidence that [Lisa] and Hershman had intertwined finances of any kind over the course of their eight-year dating relationship.” The court noted that prior to trial, Lisa produced “thousands and thousands of financial statements including all her bank accounts and other financial accounts that failed to demonstrate” intertwined finances.
Anthony hired an investigator who took approximately 1.2 million photographs of Lisa, Hershman, and their children. Not one of those photographs showed Lisa and Hershman kissing, holding hands, or hugging.
Both Anthony and Lisa presented cell phone tower experts concerning Hershman’s location when he made cell phone calls. Anthony’s expert admitted that could not identify with certainty a single cell phone call made by Hershman from Lisa’s home.
Anthony’s motion was denied and he was required to pay $419,311 of his own attorney fees for the application as well as Lisa’s attorney’s fees of $724,248 for defending the action.
Anthony appealed and the Appellate Division found no abuse of discretion regarding the denial of the motion or the attorney fee award.
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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We offer payment plan options to clients financially incapable of providing full payment upfront. If you have been divorced with an alimony obligation and the other party is cohabitating similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties. We represent clients in all towns in New Jersey, including Bass River, Beverly, Bordentown City, Bordentown Township, Burlington City, Burlington Township, Chesterfield, Cinnaminson, Delanco, Delran, Eastampton, Edgewater Park, Evesham, Fieldsboro, Florence, Hainesport, Lumberton, Mansfield, Maple Shade, Medford Lakes, Medford Township, Moorestown, Mount Holly, Mount Laurel, New Hanover, North Hanover, Palmyra, Pemberton Borough, Pemberton Township, Riverside, Riverton, Shamong, Southampton, Springfield, Tabernacle, Washington Township, Westampton, Willingboro, Woodland Township, and Wrightstown.