Cohabitation Criteria For Alimony Termination
- April 20, 2015
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In Wachtell v. Wachtell, a Morris County case, the Family Court terminated alimony based upon a finding of cohabitation. The Appellate Court vacated the alimony termination order and remanded the case back to the Family Court for a plenary hearing to focus on the disputed facts with regard to the alleged cohabitation. The legal threshold to prove cohabitation for the purposes of terminating alimony has been established through case law. In Konzelman v. Konzelman, 158 N.J. 185 (1999), cohabitation was defined by the existence of a relationship shown “to have stability, permanency, and mutual interdependence.” See also Reese v. Weis, 430 N.J. Super. 552, 570 (App. Div. 2013). Although, “living together, intertwined finances such as joint bank accounts, shared living expenses and household chores” may support a determination of cohabitation, such examples should not be considered in a vacuum. Konzelman, supra, 158 N.J. at 202. With regard to procedure, a party who pays alimony and who alleges cohabitation must first present prima facie evidence that his or her ex-spouse is in such a relationship that is tantamount to marriage. Gayet v. Gayet, 92 N.J. 149, 154-55 (1983). If this initial threshold is met then the parties may engage in a discovery process. Further, it is customary for factual disputes involving alleged cohabitation to be resolved at a plenary hearing where a Family Court judge can determine the credibility of competing witnesses. Winegarden v. Winegarden, 316 N.J. Super. 52, 56 n.1 (App. Div. 1998). A hearing may be avoided if there are no disputed issues of material fact and the matter is otherwise suited for disposition on the papers. Segal v. Lynch, 417 N.J. Super. 627, 642-43 (App. Div. 2011). In this case, the Appellate Division agreed with the ex-husband that his Motion papers set forth a prima facie case of cohabitation. The Appellate Court disagreed with the findings of the Family Court, terminating alimony based upon cohabitation, because a key factual dispute was raised by the ex-wife regarding the amount of overnights that her paramour spend with her during the week. The Appellate Court reasoned that although not completely dispositive, an important factor in any cohabitation analysis is that people must cohabit to a substantial agree in order for a determination of cohabitation to be made. Therefore, because the parties disagreed over the number of nights that the ex-wife’s paramour was spending with her, the Appellate Court vacated the termination of alimony Court Order and remanded the case back to the Family Court for a plenary hearing on the issue. The laws governing the issues involving alimony and cohabitation have recently been changed and it is very important that you seek out the advice of an attorney to protect your rights and entitlements. If you are considering 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 , emancipation, 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.