What impact does cohabitation have on alimony in New Jersey?
The statute NJ 2A:34-23 was amended in 2014 to reflect that alimony in the event of cohabitation was more likely to end, versus the earlier versions of the statute where alimony was permitted to be modified based on the supporting spouse’s cohabitation with a third party in a marriage-like relationship.
Despite the change in the law, the appellate courts are taking a significant amount of time to interpret what that change means in practical application.
There have been some cases that were decided, but only one that was published to help give some guidance as to what the true impact of cohabitation is as we move forward. That case was Landau-v.-Landau.
In the Landau case, there was uncertainty because under the statute, as it was amended, people no longer need to live together to reach the cohabitation standard. There are other criteria. For example, overlapping financial relationships, the perception of the relationship among the parties and their social circle can lead to a cohabitation finding even if the couple does not share the same home on a full time basis.
Social media has played a big part in the finding of cohabitation even though parties may maintain separate addresses.
What often happened was that when the paying ex-spouse brought a court application alleging cohabitation, the courts ordered parties to submit to long discovery processes, including expensive depositions, and the exchange of private financial information before making any conclusions about whether the standard for cohabitation was met.
The Landau case held that the court has to now make a prima facie (preliminary) determination that cohabitation exists before ordering the discovery. The situation is no longer that a paying ex-spouse can make an application and the court immediately schedules costly and invasive discovery. The Landau case refined the issue so that trial courts now have to make that finding as opposed to just ordering discovery.
If you pay alimony to an ex-spouse and you suspect cohabitation, you have to do more than download pictures from social media. There has to be some type of investigation or analysis regarding whether or not there is cohabitation. That includes some kind of social relationship and also potentially a financial relationship, if you can’t produce information that the parties actually share a physical address.
Many judges think that the law hasn’t changed much but it has in a significant way because you can no longer modify alimony if there is a finding of cohabitation. The only exception would be if your MSA provides for that specific relief.
Alimony and the Marital Settlement Agreement
The other critical part of modifying alimony in the event of cohabitation is the wording in the original agreements. When you enter into a marital settlement agreement, you get the “benefit” of your bargain.
Attorneys hadn’t anticipated 10 or 15 years ago how the law would evolve today. Many people contracted specifically to have modification of alimony in the event of cohabitation, which reflected the law at the time. If that is set forth clearly in their marital settlement agreement, it is controlling. If you’ve contracted for a different standard and modification of alimony based on cohabitation is a provision in your MSA, you may very well be held to that bargain.
While new cases are helping us interpret the law, cohabitation and interpretation of the statute is defined first by the original marital settlement agreement.