Cohabitation

Cohabitation is a term used as it relates to the payment and receipt of alimony. A payor spouse may seek to a modification and/or termination of alimony if he or she believes their recipient spouse is cohabitation with a paramour. There are many circumstances when a payor spouse may seek a modification of an alimony award to reduce or terminate his or her obligation to pay alimony. In order for a change in alimony to occur, there must be a proven change of circumstances. When a former spouse moves in with a new partner it does not alone suffice as a significant change in circumstances to qualify for a change in alimony.

Cohabitation that justifies a modification of alimony must be what the Courts call a relationship “tantamount to marriage.” A “common residence” or “mere romantic casual or social relation¬ship” is insufficient. Evidence of cohabitation must include intertwined finances, shared living expenses, participation in household chores and recognition of the relationship by the couple’s friends and family just to name a few.

A change in economic circumstances must also accompany the cohabitation in order for an alimony modification to be considered. The payee spouse must receive a “substantial economic benefit” as a result of the cohabitation. In making determinations as to the effects of cohabitation on the financial situation of a payee spouse, New Jersey courts consider not only the actual financial assistance resulting from the new relationship, but also may weigh other enhancements to the dependent spouse’s standard of living that directly result from cohabitation, as well as the duration of the cohabitation and its similarities to a marital relationship.

Most of the time parties will include in their Marital Settlement Agreements a clause that either allows for termination and/or mediation of alimony based on cohabitation. Some agreements even go as far to say that after for example 60 days of cohabitation alimony shall cease. These clauses have been effectively enforced in the New Jersey courts for alimony termination regardless of a payee spouse’s change in economic circumstances.

With the passage of the New Alimony Statute, the above was finally codified in statute, N.J.S.A. 2A:34-23. 

There are also a few noteworthy changes.

The 2014 cohabitation statute provides that cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.
When assessing whether cohabitation is occurring, the court shall consider the following:
(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 circle;
(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 subsection h. of r.s.25:1-5; and
(7) all other relevant evidence
The statute now further clarifies that cohabitation does not require a payee and cohabitant living together on a full-time basis, which was previously an issue left up to the Court to decide.  The Statue, however, does not address whether the economic benefits test still is necessarily required under the statute or whether a court can modify a support award rather than “suspend” or “terminate” as the statute states.
Interpretation of the statute by the trial court and Appellate Division is continuously expanding and you need an attorney that understands and has experience with cohabitation law both pre- and post-amendment to the Statute.
The following are a few noteworthy post-amendment reported decisions from the Appellate Division and Supreme Court:
Holding: that the statute does not apply to post-judgment orders finalized before the statute’s effective date of Sept. 10, 2014.
Holding: that payor’s alimony obligation terminated based on payee’s cohabitation because of the precise language in the parties agreement which calls for termination irrespective of the fact that the cohabitation ended.