The Effect of Cohabitation on Alimony in New Jersey

Michael K. McFadden

Each case involving a termination of alimony based on cohabitation may involve the analysis of the parties divorce resolution terms as well as a review of the requirements of N.J.S.A. 2A:34-23(n). 

The first issue presented when a party seeks modification or termination of an alimony agreement based on cohabitation is to establish a prima facie case of cohabitation. This is achieved by filing a motion with supporting documents and affidavits. If the Court determines a genuine issue was been presented the Court will generally permit discovery and schedule a plenary hearing.  Lepis v. Lepis,  83 N.J. 139 (1980). Conducting such a plenary hearing in cohabitation disputes is consistent with the general principle in post-judgment matrimonial cases that "[d]isputes of material fact should not be resolved on the basis of  [written] certifications[.]" Palmieri v. Palmieri,  388 N.J. Super. 562, 564 (App. Div. 2006).

The 2014 statute N.J.S.A. 2A:34-23(n) guides the New Jersey Courts in the modification of alimony orders based on cohabitation;

Alimony may be suspended or terminated if the payee cohabits with another person. 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.

In evaluating whether cohabitation is occurring and whether alimony should be suspended or terminated, the court shall also consider the length of the relationship. A court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis.

The New Jersey Supreme Court in Konzelman v. Konzelman, 158 N.J. 185 (1999) stated:

 Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage.   These can include, but are not limited to, living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the      couple's social and  family circle.

In concluding cohabitation applications should be preceded with significant efforts directed to the investigation of facts that support the factors set forth in N.J.S.A. 2A:34-23(n).  Otherwise an application may be dismissed without the opportunity to perform discovery and present the evidence to the Court at a plenary hearing.  At the plenary hearing the Court will have the opportunity to appraise the credibility of the parties and witness.