Alimony Suspended For 9 Months Based Upon Cohabitation
- April 24, 2015
- No comments
In Fringo v. Fringo, the Plaintiff appealed from a Family Court post-judgment Order issued in 2013 that suspended her entitlement to alimony for nine (9) months because of the Plaintiff’s cohabitation with her significant other. In her appeal the Plaintiff argued that the Family Court erred because the Defendant failed to prove a prima facie case of cohabitation and even if he had rebutted the presumption. The Appellate Division affirmed the decision of the lower court. The parties were married in 1993 and divorced in 2011 pursuant to a final judgment of divorce and an incorporated marital settlement agreement (MSA). The MSA stated that the “…parties agree that cohabitation by wife shall constitute a substantial change in circumstance in accordance with NJ law.” In 2013, the Defendant filed a Motion seeking the modification or termination of his alimony obligation because the Plaintiff was cohabitating with another person. The Defendant submitted with his Certification the Certification of a private investigator who prepared a report detailing that the Plaintiff’s boyfriend began to live in her apartment in December of 2012. After hearing oral argument in 2013, a Family Court judge granted the Defendant’s Motion for a modification of alimony based upon the Plaintiff’s cohabitation relying on Ozolins v. Ozolins, 308 N.J. Super. 243 (App Div. 1998) and Reese v. Weis, 430 N.J. Super. 552 (App. Div. 2013), and based upon the Plaintiff and her boyfriend’s admission that he lived with her for nine (9) months in 2012. Therefore, the court terminated the Defendant’s alimony for nine (9) months and credited the Defendant’s overpayment against eighteen (18) of future alimony payments. Subsequently, an appeal was filed. According to the Appellate Court, alimony awards are not set in stone and can be modified if a party demonstrates a significant financial change since the alimony was first awarded. Reese v. Weis, 430 N.J. Super. at 569. Further, an alimony award can be modified based upon a changed circumstance which rests with the discretion of the judge. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Cohabitation constitutes a change in circumstances. Gayet v. Gayet, 92 N.J. 149, 155 (1983). The Appellate Court’s review of the record displayed that the Plaintiff and her boyfriend admitted in their prior Certifications to the court that they lived together and failed to rebut that presumption therefore the Defendant was able to establish a prima facie case of changed circumstances for the time period that the Plaintiff’s boyfriend was living with her, which was nine (9) months in 2012. As a result, the Appellate Court affirmed the decision of the lower court. The laws governing alimony and cohabitation have recently been changed. It is very important that you seek out the advice of an experienced family law attorney to protect your rights an entitlements if you are considering a post-judgment modification of your alimony obligation based upon your ex-spouse’s cohabitation with another person or for any other reason. For more information about alimony, divorce, post-judgment modification, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.