I cannot count the number of times that a client has sat in my office and told me that their ex-spouse is currently living with a member of the opposite sex and this fact alone should terminate their alimony obligation.  While it may sound like a logical premise to some that alimony should automatically terminate upon an ex-spouse’s cohabitation, New Jersey divorce law views the matter from a much different perspective.

 

In New Jersey, whether or not a payor of alimony will be granted financial relief due to the alimony recipient’s cohabitation requires a two-step analysis. 

 

The first step is for the payor spouse (the individual that is obligated to provide alimony payments) to convince the Court that the payee spouse (individual that is receiving alimony) is actually physically cohabitating. 

 

The case law development on the issue has held that cohabitation involves an intimate relationship in which the couple has undertaken the duties and privileges that are commonly associated with marriage.  These facts can include, but are not limited to, living together, intertwined finances (such as joint bank accounts), sharing living expenses and household chores, and the recognition of the relationship in the couple’s social and family circles.

 

The legal burden of proof at the first step of the litigation remains on the payor spouse to present a convincing case that the payee is indeed cohabitating. Many cases do not make it past this point.  It is often difficult to obtain the requisite proofs that a former spouse is physically cohabitating by just presenting mere inferences.  For example, simply stating that you saw a third party’s car parked at your former spouse’s residence overnight on a couple of occasions is not going to convince the Court of physical cohabitation.  Moving forward with a cohabitation petition is a tough decision for the Court to make, as it must juggle the delicate balance between a payee spouse having the freedom of being able to pursue a post-judgment relationship with the payor spouse’s protections against paying support to an individual that is financially co-dependent on a third party.

 

If the Court is satisfied that the payee spouse is physically cohabitating, the second step of the litigation commences, with the legal burden now shifting to the payee.

 

At this step, the payee must prove that their cohabitation does not provide them with a level of financial benefit that would warrant a reduction of the alimony award.  A discovery period will usually be opened, often making this portion of the litigation very uncomfortable for the payee spouse.  It is typical for the payee spouse to turn over their individual financial documents (bank statements, wage information, etc).  I have also seen cases in which the third party cohabitant (boyfriend or girlfriend) is also Court ordered to present their financial records to reveal the true financial relationship between themselves and the payee.

 

In order to successfully defend against the potential alimony modification, the payee must prove to the court that there is no level of financial interdependence with the third party to warrant a modification and/or terminate of support from the payor spouse.  It is a complicated legal scenario and one in which the Court will need to review the true nature of the financial dealing of the payee and the third party cohabitant.

 

With the complex nature of our law on the issue, it is my recommendation that you speak with an experienced family law attorney to review any and all options before proceeding with a litigation to modify your alimony obligation due to cohabitation.