Motion to Modify Alimony, Finding the Movant Had Made a Prima Facie Showing of Cohabitation
Docket No. A-0551-20
Decided May 12, 2022
Submitted by New Jersey Family 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In a recent unpublished decision the Appellate Division of New Jersey affirmed a trial court’s denial of a motion to modify alimony, finding the movant had made a prima facie showing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 Meixner, the parties were married in 1992 and have three children. In 2015, they separated. Dina subsequently filed a complaint for divorce. Through mediation, the parties reached a property settlement agreement (PSA), which was later incorporated into a judgment of divorce. The PSA requires Thomas to pay alimony for twenty years. His alimony obligation terminates if Dina “cohabitates with an unrelated adult in a relationship tantamount to marriage in accordance with the New Jersey case law at the time.”
In April 2020, Thomas moved for termination of alimony, alleging Dina was cohabitating with Joel. In a certification filed in support of the motion, Thomas alleged that although Joel maintains his own home, he and Dina reside together in Dina’s house, quarantined together during the Covid-19 pandemic, share expenses, and are “doing everything a married couple does.” Thomas alleged Dina’s and Joel’s families, Dina’s neighbors, and the children’s healthcare providers recognize Dina and Joel as a couple in a committed relationship. According to Thomas, Dina hosted Christmas 2018 at her home with Joel and his family and the two spend most holidays and vacations together with their respective children.
Thomas alleged that in September 2019, he arrived at Dina’s home to retrieve his golf clubs and found Joel there alone and “clearly living there.” On another occasion, Thomas was invited into the home by Dina when he was picking up the children. While there, Thomas walked through the home taking photographs that he submitted in support of his motion. The photographs depict a few articles of men’s clothing belonging to Joel hanging in Dina’s bedroom closet, framed photographs of Joel with Dina and the children and other family members on display in the home, and a letter addressed to Joel’s business using Dina’s home address.
Finally, Thomas submitted a report from an investigation firm he hired to monitor Joel’s activities over nine days in October 2019, six months prior to the filing of his motion. The report included photographs of Joel’s vehicle at Dina’s home on seven of those days, but also notes a number of occasions when an investigator observed that Joel was not at the house.
The court found Thomas failed to produce evidence of intertwined finances, joint bank accounts or other holdings or liabilities. N.J.S.A. 2A:34-23(n)(1). Nor, the court found, did Thomas produce evidence of sharing or joint responsibility for living expenses. N.J.S.A. 2A:34- 23(n)(2). The court noted that, while not dispositive, the evidence produced by Thomas indicates the parties maintain separate residences, notwithstanding the fact that Joel sometimes stays overnight at Dina’s home.
The Court denied Thomas the allowance of discovery and dismissed his motion. Thomas appealed and the Appellate Division affirmed, finding that Thomas, at best, produced evidence of a dating relationship. There is no financial entanglement between the two and the minimal photographic evidence shows a guest in Dina’s home, not a relationship tantamount to marriage.
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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