The Six Factors Required to Show Cohabitation for Purposes of Alimony Modification
Docket No. A-0293-20
Decided June 17, 2021
Approved for publication June 30, 2021
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent published decision the Appellate Division of New Jersey reversed a trial court’s denial of a motion to modify alimony, finding the movant had made a prima facie showing of cohabitation even though evidence of financial comingling was not present.
In Temple, the parties were married in 1986, have two now-emancipated children, separated in 2001, and divorced in 2004. A January 29, 2004 dual judgment of divorce incorporated their marital settlement agreement, which obligated plaintiff Jeffrey Temple to pay defendant Cynthia Temple $5,200 per month in permanent alimony. More than sixteen years later, in July 2020, Jeffrey moved to terminate his alimony obligation, alleging Cynthia had either remarried or was cohabiting with a man with whom she had been in a relationship for at least fourteen years.
Jeffrey has shown, based on what was available from social media and from the way Cynthia and William Boozan presented in public, as well as information from family members, that Cynthia and William are now or have in the past resided together, that they have had a fourteen-year relationship, that they have traveled together extensively, and that there are other “indicia of a mutually supportive intimate personal relationship.”
Turning to the factual basis on which Jeffrey moved for relief, he certified that approximately two years after the divorce, he noticed William Boozan’s car regularly outside the former martial home when picking up his children for weekend visitation. Cynthia and William have acknowledged they were then in a dating relationship. Jeffrey, obviously not being privy to their financial arrangements and circumstances beyond what an outsider may see without unlawfully prying, was otherwise unaware of the nature and extent of Cynthia and William’s relationship for years. But, after observing social media posts that suggested more than a dating relationship, Jeffrey decided to hire a private investigator.
This investigation produced considerable evidence of cohabitation or perhaps even a marriage. Specifically, in numerous social media posts over the span of the past seven years, William Boozan referred to Cynthia as “my wife”. Those posts not only reveal that William Boozan referred to Cynthia as his “wife,” but they also reveal, as do the following social-media posts, that he and Cynthia traveled and participated in events extensively. Other social-media posts revealed how often Cynthia and William were together for holidays and family functions.
Jeffrey also demonstrated that Cynthia spent a considerable amount of time with William at his Spring Lake home, which he purchased in 2016, as suggested by photos of Spring Lake she posted on her Instagram account in the Summer of 2016, November 2016, January 2017, September 2018, November 2018, April 2019, and February 2020.
The trial court denied the motion to modify alimony, ruling that Jeffrey had not made a prima facie showing of cohabitation because he had not shown evidence for all factors in N.J.S.A. 2A:34-23(n). Jeffrey appealed and the Appellate Division reversed the denial. The Appellate Division found that a movant does not have to provide evidence for all the factors in N.J.S.A. 2A:34-23(n) in order to meet a prima facie showing. This requirement would make it near impossible for anyone to make a prima facie showing. Rather, if there is a factual dispute presented, the Judge has to conduct an evidentiary hearing after allowing for discovery to occur. Jeffrey hear presented more than ample evidence to suggest cohabitation is occurring, warranting financial discovery and a hearing.
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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