New Jersey Lawyer & Attorney : Stark & Stark Law Firm : New Jersey Law Blog

Cohabitation by the supported spouse is often raised as a reason to terminate alimony by the paying spouse.  Several decisions have been written by the Appellate Division in the past few months concerning cohabitation and how it effects alimony.  In the case of Olito v. Olito, decided in October of 2008, the parties had been divorced since 2004, and their Property Settlement Agreement stated “Wife agrees and acknowledges that Husband’s alimony obligation herein shall cease and terminate upon Wife’s remarriage or Wife’s cohabitation as per New Jersey Case law.”  In the Husband’s post-judgment motion to terminate alimony, he asserted that his ex-wife was living with a female partner.  He claimed that they had undertaken a way of life as a committed couple.  The ex-Wife admitted that she rents a house with another woman; however, she denied any relationship, intimate or otherwise, and stated that their financial arrangement was to split rent.  The Appellate Court affirmed the Lower Court’s holding that the ex-Husband did not meet his burden of proof on the cohabitation claim.  He simply stated that his ex-Wife’s present living arrangement was cohabitation under New Jersey law. 
   

The Appellate Court went into much more detail in reviewing this issue.  It cited to previous case law which defines cohabitation as:

“more than merely a common residence or a sexual relationship.  We believe the ordinary definition of ‘cohabitation,’ describing a relationship of living together ‘as man and wife,’ connotes mutual assumption of the duties and obligations associated with marriage.  To guide trial courts in applying this definition, we have formulated a list of factors to consider in determining whether a relationship constitutes cohabitation.  We emphasize however that the list is non-exhaustive, and that no one factor serves as an absolute prerequisite for cohabitation.”
 

The factors that a Court should consider are:

1.     Establishment of a common residence;
2.     Long term intimate or romantic involvement;
3.     Shared assets or common bank accounts;
4.     Joint contribution to household expenses; and
5.     Recognition of the relationship by the community.

   

In reviewing the above factors, it is clear that our courts view cohabitation as “tantamount to a marriage.” 
   

Further, in looking at whether there are changed circumstances which warrant modification of alimony in the case of cohabitation, modification would be warranted when either the cohabitant contributes to the dependent spouse’s support or lives with the dependent spouse without contributing.  In the Olito case, the Appellate Division agreed with the trial court in that the Defendant, ex-Husband, offered no evidence of either an intimate relationship or economic interdependence.  In the absence of such evidence, the ex-Husband failed to meet his burden of proof, and, therefore, the Court was right to reject the claim of cohabitation and thereby modify his alimony obligation.   

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In divorce cases where alimony is an issue, it is not merely an issue of amount.  The length of time must also be decided. Prior to 1999, there were only two types of alimony pursuant to legislation B permanent and rehabilitative. The law was amended in September, 1999, to add limited duration alimony and reimbursement alimony. 

By statutorily allowing limited duration alimony (LDA), or alimony for a term of years, the legislature gave to the courts the authority to do what attorneys had been doing for their clients all along through negotiated agreements. This flexibility has been helpful to divorce litigants, since not all cases warrant permanent or rehabilitative alimony.   

However, what is the line of demarcation between an award of limited duration alimony and permanent alimony?  Unfortunately, there is no bright line, and the ultimate resolution will depend on the facts of each case, as well as the Judge's perspective. 

In attempting to resolve this issue, case law is instructive.  Several reported decisions by the New Jersey Appellate Division have provided some guidance in distinguishing between the two types of alimony. 

Limited duration alimony is available to a dependent spouse who made contributions to the marriage, if the marriage is of short duration.  Permanent alimony is awarded after a lengthy marriage, in recognition of prolonged economic dependence and sustained contribution to a marital enterprise.

 

While all the statutory factors in determining alimony must be considered (such as need of the party, ability to pay, health of the parties, standard of living during the marriage, etc.), the duration of the marriage is the defining distinction between whether permanent or limited duration alimony is awarded.  Yet, the question remains, what is considered a short term marriage, and what is a long term marriage?   And, what do we do about intermediate length marriages? 

While not defining what a short-term marriage is, the Appellate Division in Cox v. Cox stated that a 22 year marriage is a long term marriage, and therefore reversed the Lower Court's award of limited duration alimony. In Hughes v. Hughes, the parties were married for 10 years.  The Lower Court awarded rehabilitative alimony to the Wife (LDA was not yet statutorily authorized), placing great emphasis on the length of the marriage.  The Appellate Court disagreed that a 10 year marriage should be considered short-term stating that "By today's standards, it is not."  The Court went on to state that because the marriage was of intermediate length, the Wife should receive permanent alimony.

 

In a recent Appellate Court case, Valente v. Valente (decided in January, 2009), the parties were married for close to 12 years and had 3 children.  The Lower Court held that the Wife was entitled to permanent alimony.  The Appellate Division, however,  found that limited duration alimony was appropriate in this case, citing the fact that the marriage was of intermediate length.  The Wife's age (40), education (high school diploma), and the age of the children would allow her to obtain a job within a reasonable time.

 

The Court noted that at the end of the term, the Wife could seek permanent alimony or an extension of limited duration alimony if her earnings were insufficient to maintain her lifestyle without alimony. This holding is perplexing given that the statute on limited duration alimony specifically states that the Court may modify the amount of the LDA award, but not the length of the term,  except in unusual circumstances.  Yet, the Appellate Division seems to be saying that any circumstances which would support the fact that the Wife cannot earn an income to support her marital lifestyle would be sufficient.

 

In another recent case, the Appellate Court had before it the "unusual circumstances," which would give rise to an extension of LDA.  The parties were married for 7 years and had 2 children.  Both were lawyers.  The Husband had an active practice, and the Wife did not, because of her parenting obligations.  The parties had agreed to LDA for a term of 4 years.  After the divorce, one of the children was diagnosed with psychological disorders.

The Lower Court denied the Wife's motion for an extension or increase in alimony.   The Appellate Division, however, honed in on the heightened standard - unusual circumstances - for extending the term of LDA and agreed that the Wife had made a sufficient showing due to her son=s current mental health condition. 

Given the above, we can glean from case law that marriages between 10 and 12 years are of intermediate length, and marriages of over 20 years are considered long term marriages.  Although we do not know whether long-term starts at 13 years, or some other number, we do know that permanent alimony will be awarded in a long term marriage, and LDA will be awarded in short term marriages.  We can also draw from the Valente case, that LDA is appropriate for marriages of intermediate length, and in appropriate circumstances, it will be extended. 

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There is a strong preference in New Jersey for parents to share joint legal custody of their children.  Joint legal custody is where the parties agree to consult with each other on major decisions affecting the welfare of the children.  One of the parents is then designated as the Parent of Primary Residence and the other is the Parent of Alternate residence.   
 

If the parties share joint legal custody of a child, their Property Settlement Agreement will usually address the issue of reimbursement of uncovered medical expenses.  The Parent of Primary Residence typically is responsible for the first $250.00 of uncovered medical expenses per child per year.  Thereafter, the Parent of Alternate Residence will be required to be responsible for a portion of the uncovered medical expenses.  However, because the parties share joint legal custody of the children, the parents are required to consult with each other regarding decisions, including medical treatment.
 

A recent New Jersey Appellate Division case addressed the issue of whether a custodial mother waived medical reimbursement for the children when she failed to consult the noncustodial father in advance of the medical treatment.  The Appellate Division held that the right to receive reimbursement of medical expenses is not subject to waiver by the custodial parent. Like child support, the right to receive reimbursement of uncovered medical expenses belongs to the children.  Thus, the noncustodial parent must still reimburse a portion of uncovered medical expenses even if they were not consulted regarding the treatment.  However, the Court did acknowledge that the noncustodial parent retains the right to question the custodial parent regarding the reasonableness of the medical expense. 
 

The Court outlined specific factors to assist them in determining the reasonableness of a medical expense.  An experienced divorce attorney can advise you how to proceed with regard to the reasonableness of medical expenses. 

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When applying to modify alimony, a party must file a post-judgment motion with the Court along with a Certification setting forth the facts of the case and the reasons for the modification request.  The other party may then file a Reply Certification setting forth their position.  Many times there are conflicting facts in these Certifications.
   

In the recent case of Auerbach v. Auerbach, the ex-Wife lived with her boyfriend for nine years before the ex-Husband filed to terminate alimony based on cohabitation.  He also requested reimbursement of the alimony paid over the past nine years, stating that he had just learned of the relationship.
   

The ex-Wife stated that the ex-Husband knew she had been cohabitating.  She continued to live in the former marital home since the divorce.  She attended family functions with her boyfriend that the ex-Husband also attended on multiple occasions, and the home answering machine contained the names of the ex-Wife and her boyfriend.
   

Another issue raised was that the Property Settlement Agreement did not state that alimony would terminate in the event of cohabitation.  The ex-Wife argued that she had waived permanent alimony and accepted limited duration alimony, as well as other waivers in exchange for keeping a cohabitation clause out of the agreement.  The Husband denied this.
   

These issues, in addition to whether there was an economic interdependence between the cohabitating spouse and her boyfriend, cannot be resolved by a Court on conflicting certifications.  Factual determinations, as well as credibility of the parties, must be made by the Court, and the only way a Court could do this, is through a plenary hearing – which is a trial on all of these issues.      

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There are two inquiries which must be made in order to determine whether cohabitation is a changed circumstance which will allow modification of alimony.  The first is whether the supported spouse and the cohabitant have a relatively permanent household which may be characterized as a family unit.  The second is whether the third party cohabitant contributes (1) to the dependent spouse’s support or (2) the third party resides in the dependent spouse’s home without  contributing anything towards the household expenses. 
   

Once the party filing the Motion for modification of alimony due to cohabitation gives the Court enough proof that a third party and the supported party are living together in a relatively permanent household as a family unit, the burden of proof shifts to the supported party (the receiver of alimony) to show that there is no economic interdependence between that party and the third party (cohabitant). 
   

In a recent case, the party who was paying alimony gave proof to the court that his ex-Wife was living with her boyfriend with whom she had had a relationship for many years.  He included a private investigator’s report showing that the third party stayed overnight at his ex-Wife’s home on many occasions, the third party had installed a business telephone, computer line and fax machine in the basement of the ex-Wife’s home.  He used a UPS mail box nearby as his only address in dealing with banks, utility companies, the motor vehicle commission and the Internal Revenue Service.  He used the laundry facilities at the ex-Wife’s address and had a closet in her home containing his belongings.  He also assisted with grocery shopping and dog walking and was present on holidays and birthdays throughout the years.
   

Proofs such as the above supplied by the paying spouse meets his burden of proof to show cohabitation.  The burden of proof would then shift to the supported spouse to show that there is no economic interdependence between her and her boyfriend.      

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In New Jersey, a person seeking to modify a child support or alimony obligation must show that a significant change in circumstance has occurred since the time the award was entered.  It is the party who is seeking the modification that has the burden of proving that they have incurred a change in circumstances sufficiently substantial to warrant a modification of support.  Court’s have held that a decrease in the obligor’s income may constitute a substantial change in circumstances.  However, a reduction in income due to a voluntary retirement may not be sufficient. 

In regard to alimony, the Courts have held that the pivotal issue is whether the advantage to the retiring spouse substantially outweighs the disadvantage to the receiving spouse.  For instance, a situation where the obligor is retiring due to health concerns where the effect of the termination of the alimony would be minimal to the receiving spouse favors the payor.  However, if the obligor simply does not want to work, and the termination of alimony would substantially effect the receiving spouse, a Court would be less likely to grant the application to modify alimony.  In determining this issue, New Jersey Courts have set forth a number of factors that the deciding Court should consider, including:

• the ages of the parties
• the health of the parties
• the motivation which led to the decision to retire
• the timing of the retirement
• whether the retirement was mandatory or voluntary
• the financial impact of the retirement upon the financial positions of the     parties
• the expectations of the parties   

The right to receive alimony belongs to the receiving spouse.  Therefore, that spouse may agree to the retirement and effectively waive their right to support.  However, the right to receive child support belongs to the child, and may not be waived by the receiving spouse.  Therefore, when an obligor seeks a modification of child support due to voluntary retirement, the Court must determine whether the modification is in the best interests of the child.  The Court must again weigh the advantages to the retiring parent and disadvantages to the child.  Specifically, the Court must consider similar factors, as set forth above, such as the retiring parent’s age, health, finances, assets, and reason for retiring.  The Court must also consider the impact of the reduced support on the child, such as the child’s needs, age, health, assets, and standard of living.  Finally, the Court must determine the fairness of the decision, taking into account the obligor’s motivation for retirement, good faith, and voluntariness of the retirement. 

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Despite the fact that the biological father had a history of mental health problems, substance abuse, and criminal involvement, a New Jersey Superior Court recently refused to consider the maternal grandfather’s application to adopt his granddaughter, and thus terminate the parental rights of the father.

 

Specifically, the biological father of the child in question was arrested twenty seven times, incarcerated on several occasions, and treated for substance abuse and mental health issues off and on for twenty eight years. When the child was five years old, she told the mother that her biological father had sexually molested her. The Division of Youth and Family Services (DYFS) conducted an investigation and concluded that the father probably sexually molested the child one time. Although the father was arrested and charged with sexual assault and endangering the welfare of the child, the State dismissed the indictment and DYFS closed its case. A year later, the parents were divorced, and the mother obtained a final restraining order against the father, which prohibited the father from contacting her or any members of her family, including the child.

 

Two years later, the child’s maternal grandfather applied to the Court to adopt the child to provide [the child] with emotional, financial and physical stability. In support of his application, the grandfather emphasized that the biological father had accumulated arrears of $11,516.08. The Mother consented to this adoption and filed an application to the Court requesting that the Court terminate the biological father’s parental rights. The application was accompanied by a certification describing the abuse that she and the child endured from the birth father. The biological father filed an opposition to the adoption complaint.

 

The Court granted the biological father’s application for summary judgment, holding that a grandfather should not be allowed to be co-parent with his daughter when the biological father survives. The Court elaborated that, absent a showing of abuse or neglect, a private party is not permitted to terminate a parent’s parental rights. The only other way to terminate the parental rights of a biological parent is for the parent to voluntarily surrender their rights or if the Court finds that the parent has not fulfilled their parental duties and that adoption in the child’s best interest.

 

The Court further provided that the legislature did not intend for persons outside of marriage or a partnership to adopt children together. Courts have allowed step-parents or a partner in a same sex relationship to adopt when it is in the best interest of the child. Here, the applicant was the biological mother’s father. While forty eight other states allow same sex adoption, no other state has allowed a grandparent to become a co-parent with their own child by adopting their grandchild. Thus, the Court declined to consider this application.

 

The New Jersey law does afford grandparents a right of visitation with their grandchildren over the biological parent’s objection, provided that the grandparent provides that the child is harmed by not visiting with them. New Jersey also allows grandparents to adopt their grandchildren over the biological parent’s objection when both parent’s parental rights have been terminated.

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The New Jersey Statute regarding adult adoption requires at least a ten year age difference between the adopting person or persons and the adoptee. A recent New Jersey Superior Court reasoned that this requirement served to ensure that some resemblance of a parent-child relationship exists between the parties.

 

Recently, an adult married couple, ages fifty and fifty three, applied to the New Jersey Superior Court to adopt a fifty-two year old woman that lived with the couple for ten years. The couple stated that they wanted to formalize their familial relationship with the woman and were not seeking to adopt the woman for inheritance purposes.

 

Having no case law addressing this issue, the New Jersey Court looked to our neighboring states of New York and Delaware for guidance. Both of these jurisdictions have ruled on the issue of whether a parent-child relationship is prerequisite for adult adoption. However, these jurisdictions have reached opposing conclusions.

 

The New York Court faced this issue when a fifty-seven year old male sought to adopt his fifty year old homosexual partner. The Court held that "where the relationship between the adult parties is utterly incompatible with the creation of a parent-child relationship, an adoption should not be granted by the Court." In other words, the New York Court found that a party seeking to adopt another adult must prove that a parent-child relationship exists between the parties.

 

However, a Delaware Court was faced with the same issue, where a sixty-six year old male sought to adopt his fifty-one year old homosexual partner. The Delaware Court held that a parent-child relationship is not a condition to adult adoption. The Court distinguished their decision from the New York decision in that the Delaware statute governing adult adoption did not require an examination into the best interests of the adoptee.

 

Like New York, the New Jersey Statute governing adult adoption requires the Court to perform an inquiry into the best interests of the adoptee. As a result, the New Jersey Court interpreted this best interest requirement to require the parties to at least establish that there existed a parent-child relationship, especially since the age-requirement was not met.

 

This recent case gives us an answer that adults seeking to adult other adults must prove a parent-child relationship exists between the adopter and adoptee, especially if the ten-year age requirement is not satisfied.

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Palimony is a claim for support between unmarried persons first recognized in California in 1976 in the case of Marvin v. Marvin.  New Jersey Courts will recognize a claim for palimony if the right set of circumstances exist.  Given the widespread practice of non-marital relationships and societies’ acceptance of such relationships, the courts have adjusted their views of unmarried persons’ rights and obligations in light of these societal realities. 


However, it is one thing to seek palimony and another to obtain it.  In order to obtain palimony, the party seeking it must prove that the other party promised – either expressly or impliedly – to support the other party for some period of time – perhaps forever.  Since a promise of support and reliance on that promise is a contract, which under contract principles must have consideration, New Jersey Courts have determined that the entry into a marital-type relationship and then conducting oneself in accordance with its unique character is sufficient consideration to enforce a promise of support.
  

A marital type relationship is one

“in which people commit to each other, foregoing other liaisons and opportunities, doing for each other whatever each is capable of doing, providing companionship, and fulfilling each other’s needs, financial, emotional, physical, and social, as best as they are able.  And each couple defines its way of life and each partner’s expected contribution to it in its own way.  Whatever other consideration may be involved, the entry into such a relationship and then conducting oneself in accordance with its unique character is consideration in full measure.”

   
Until recently, Courts in New Jersey required cohabitation for a palimony claim.  In a very significant turn, the Supreme Court of New Jersey in the case of Devaney v. L’Esperance,  held that cohabitation is not a necessary requirement for palimony.  It is the promise to support, coupled with a marital type relationship that will support a valid claim.
   

As in most family law cases, the facts of each particular case are determinative of the outcome.  In the Devaney case, the Plaintiff, as a young woman, had begun a romantic relationship with her employer, a married doctor, which relationship lasted for 20 years.  They had dinner several nights a week, the Defendant began paying some of her bills, and they vacationed together, but rarely did Defendant stay overnight at the Plaintiff’s residence when not traveling.  After ten years, the Defendant had still not divorced his Wife, as promised, and the Plaintiff moved out of state.
   

While out of state, the parties kept in touch, and the Defendant sent Plaintiff money and visited her a few times.  At the Defendant’s request, the Plaintiff moved back to New Jersey into a condo that the Defendant first leased and then purchased.  He also bought her a car, gave her money for expenses and paid for her undergraduate and graduate education.
   

The parties continued to see each other several times a week, but the Defendant rarely stayed overnight, spending only six or seven overnights at the condo in total.  They talked of having a child; however, one or both of them changed their mind.  The Defendant ultimately decided to terminate the relationship.
   

When the Plaintiff started seeing someone else, the Defendant filed an action for ejectment to remove her from his condominium.  The Plaintiff filed a claim for palimony.
   

The Lower Court found that although the Defendant made general promises to the Plaintiff that he would take care of her, and Plaintiff did become financially dependent, the Defendant never promised to provide Plaintiff with life time support.  The Plaintiff argued that the parties had an implied agreement; however, the Lower Court found that such an agreement requires a “marital type” relationship.  Since the parties had not cohabited, had not spent significant time together, had not commingled property and did not hold themselves out to the public as husband and wife, they did not have a “marital type” relationship.
   

The Appellate Division affirmed the Lower Court’s holding that cohabitation is an essential element in a case for palimony.  The Plaintiff appealed to the Supreme Court of New Jersey.  In reviewing all of the case law leading up to this case, the Supreme Court did not find that cohabitation was a necessary requirement for a successful claim for palimony.  The Court stated that a more flexible approach is needed to achieve substantial justice.  It is the express or implied promise to support, coupled with a marital type relationship that are the indispensable elements to such a claim, not cohabitation.  
   

While the Supreme Court in this particular case held that cohabitation is not necessary for palimony, the Court still affirmed the Appellate Court’s decision which denied the Plaintiff palimony because there was sufficient evidence for the trial judge to reject Plaintiff’s palimony claim.  

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