As John S. Eory, Esquire previously blogged, Governor Chris Christie signed into law changes to our alimony statute on September 10, 2014.
Prior to the new alimony statute, the law of the State of New Jersey surrounding the issue of an alimony recipient’s cohabitation was defined by our Courts. Under the previous case law, if a recipient of alimony was cohabitating with a paramour, the payor of alimony could file an application with the Court to modify or terminate their alimony obligation. Modification or termination of alimony depended on a two prong burden-shifting test, the first of which required a finding of “cohabitation” of the dependent spouse by the Court. Such a finding gave rise to the rebuttable presumption that the financial needs of the dependent spouse have been reduced. The burden of proof shifted to the dependent spouse to show that his or her economic circumstances were not improved as a result of the cohabitation. This second prong consisted of a fact-specific evaluation of the reduced financial need of the dependent spouse based upon the economic effect of his or her cohabitation.
Under the previous case law, the definition of “cohabitation” was based on several factors, which together made the relationship “close and enduring.” These factors included: (1) a common residence; (2) an intimate relationship wherein the parties undertake duties and privileges generally associated with marriage; and (3) a “serious and lasting relationship.”
Under the previous case law, a dependent spouse’s financial need may have been found to be decreased for one of two reasons: (a) because he or she was receiving support from the person with whom they were cohabiting; or (b) due to the probability that the dependent spouse was using the alimony he or she received from their former spouse to support the person with whom they were cohabitating. Since the facts regarding a dependent person’s economic circumstances are usually only within the knowledge of the alimony recipient, the failure to come forward to rebut the presumption of changed circumstances based upon decreased financial need, entitled the payor to terminate his or her payment of alimony.
The new alimony statute clarifies that a Court may suspend or terminate alimony if an alimony recipient cohabits with another person. It defines cohabitation as “a mutually supportive intimate personal relationship in which the couple has undertaken the duties and privileges that are commonly associated with marriage or civil union.” It also specifies that a finding of cohabitation may exist even if the couple does not maintain a common residence. The Court must analyze seven factors to assess the nature of the relationship:
- Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
- Sharing or joint responsibility for living expenses;
- Recognition of the relationship in the couple’s social family circle;
- Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;
- Sharing household chores;
- Whether the recipient of alimony has received an enforceable promise of support from another person; and
- All other relevant evidence.
The Court must also consider the length of the relationship in determining whether a suspension or modification of an alimony obligation is appropriate.
If you are paying alimony and suspect that the alimony recipient is cohabitating with a new partner, it is important to schedule a consultation to meet with an experienced family law attorney that is familiar with the new alimony statute.