In the world of post-divorce litigation, the issue of cohabitation by an alimony recipient continues to be an area of contention.

On the one hand, since there is no longer a duty of marital fidelity, should a former spouse who is receiving alimony be barred from living with whoever he or she chooses, especially since the paying spouse is free to do so?

On the other hand, should a person paying alimony be compelled to continue doing so when his or her former spouse is cohabiting instead of remarrying which would terminate alimony?

New Jersey courts have wrestled with these issues for years and, while every case is (as we lawyers say) fact-specific, there are legal guideposts to help navigate the terrain.

First, the mere fact of cohabitation, even when admitted-to or demonstrated to a court, is insufficient to terminate or even reduce alimony. What occurs in such cases is that the burden shifts to the person receiving alimony to prove why he or she is still entitled to payment.

In a case just decided on June 3, 2008, a three judge New Jersey appeals court upheld the lower court’s decision that alimony should continue despite the recipient’s acknowledged cohabitation and an economic inter-relationship with her boyfriend.

This case does not mean that alimony cannot be reduced or terminated if cohabitation exists. It does, however, highlight the strong need for someone seeking relief to consult with experienced legal counsel in order to determine how to proceed.