Cardali v. Cardali

Docket No. A-25-22

Decided August 8, 2023

Submitted by New Jersey Family Lawyer, Jeffrey Hark.

The Supreme Court of New Jersey in a recent decision reversed a decision to deny a motion to modify alimony based on cohabitation, finding the movant demonstrated a prima facie showing of cohabitation.

In Cardali, Plaintiff Suzanne Cardali and defendant Michael Cardali entered into a property settlement agreement (PSA), which was incorporated in their judgment of divorce in December 2006. The PSA provided that defendant’s obligation to pay plaintiff alimony would end upon her “cohabitation,” as defined by New Jersey law.

In December 2020, defendant filed a motion to terminate alimony, stating he believed that plaintiff and an individual named Bruce McDermott had been in “a relationship tantamount to marriage” for more than 8 years, over the course of which they attended family functions and other social events as a couple, memorialized their relationship on social media, and vacationed together. Defendant submitted the report of a private investigator indicating that plaintiff and McDermott were together on all of the 44 days that they were under surveillance, and that they were together overnight on more than half of those days. The investigator’s report included photographs of plaintiff and McDermott carrying groceries, bags of personal belongings, and laundry in and out of one another’s residences. The investigator stated plaintiff had access to McDermott’s home when McDermott was not at home.

The Trial Court denied Defendant’s application and the Appellate Division affirmed the denial. The Supreme Court of New Jersey granted certification for the limited questions about prima facie showing and discovery issues for cohabitation.

The Court clarified that the movant does not have to present evidence on all cohabitation factors set forth in Konzelman v. Konzelman, 158 N.J. 185, 202 (1999) — or in N.J.S.A. 2A:34- 23(n).  Instead, if the movant’s certification addresses some of the relevant factors and is supported by competent evidence, and if that evidence would warrant a finding of cohabitation if unrebutted, the trial court should find that the movant demonstrated a prima facie showing of cohabitation and grant limited discovery tailored to the contested issues in  the motion.

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.

In recognition of these trying financial times, we are reducing fees and working with clients to come up with manageable payment plans. Initial consultation is always free and we are available remotely.

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.

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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