Alimony Not Terminated In Spite Of Cohabitation
- September 29, 2015
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In Coshland v. Coshland, the Defendant appealed from a Family Court Order that denied his Motion to terminate his alimony payments because he claimed that the Plaintiff was cohabitating with her boyfriend. The Appellate Division affirmed the decision of the Family Court finding that the Plaintiff’s boyfriend did not cohabitate but was a frequent visitor who did not economically benefit the Plaintiff. Following a twenty-seven (27) year marriage that yielded two (2) children, the parties divorced in 2011 pursuant to a Property Settlement and Support Agreement (PSSA). The agreement directed that the Defendant would pay $230 a week in alimony but stated that the obligation would terminate if the Plaintiff were to begin “residing with an unrelated person, or vice versa, where [the Plaintiff] is receiving and economic benefit, for a period of not less than 30 consecutive days.” After the divorce the Plaintiff moved to a townhouse that was recently vacated by two of the Plaintiff’s friends, K.C. and her brother J.C. The townhouse was individually owned by K.C. After the Plaintiff moved in, J.C. began to spend two to five nights a week at the townhouse. The Plaintiff and J.C. “attempted” a romantic relationship but both claimed at the time of the hearing that the relationship was platonic. When the Defendant suspected the Plaintiff of cohabitating with J.C. he hired a private investigator to gather information about the relationship. Between March and April 2013, the investigator observed the Plaintiff and J.C. arriving home from work together (they both worked at Shop-Rite) and the Plaintiff visited the residence seventeen (17) times in that time frame. The Defendant filed a Motion to terminate his alimony. The Family Court Judge denied the Motion and scheduled a plenary hearing to take place. At the hearing, the judge heard testimony from the private investigator, a real-estate expert, and the Plaintiff. After hearing the testimony, the judge issued an oral opinion denying the Defendant’s Motion to terminate alimony finding that J.C. did not live at the townhouse and that the Plaintiff was not receiving economic benefit from his visits. The Defendant appealed. According to the Appellate Division, alimony can be modified if a party demonstrates a significant financial change since the alimony was first awarded. Reese v. Weis, 430 N.J. Super. 552, 572, 66 A.3d 157 (App. Div. 2013). One type of changed circumstance is cohabitation by a former spouse. Gayet v. Gayet, 92 N.J. 149, 155, 456 A.2d 102 (1983). Cohabitation is typified by a showing of a relationship “shown to have stability, permanency, and mutual interdependence.” Konzelman v. Konzelman, 158 N.J. 185, 202, 729 A.2d 7 (1999). Therefore, a former spouse residing with a significant other is not, by itself, enough to terminate alimony, further, there must be additional proof that the cohabitating spouse received some form of economic benefit from the cohabitation or the supported cohabitant “supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief. Reese, supra, 430 N.J. Super. at 557-58, 576; Gayet, supra, 92 N.J. at 153-54. Proving cohabitation creates a rebuttable presumption of changed circumstances. Ozolins v. Ozolins, 308 N.J. Super. 243, 248, 705 A.2d 1230 (App. Div. 1998). Accordingly, the burden of proof which is ordinarily on the party seeking modification, shifts to the dependant spouse to prove the lack of economic benefit and continued need for support. Id. at 248-49. In this case, the Appellate Division found that apart from proving J.C.’s frequent overnight stays at the Plaintiff’s residence, the Defendant failed to present any evidence in support of an intimate relationship or economic benefit. Therefore, the Family Court’s denial of the Defendant’s Motion was affirmed. Being that the laws governing the issues involving alimony and cohabitation have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony obligation based upon your ex-spouse’s cohabitation with another person or for any other reason it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, post-judgment modification, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.