Edward R. Weinstein, Esq.

Who Really Lives Where? A Case Study in Proving Cohabitation

Thumbnail image for photo_5894_20080509.jpgAs a New Jersey Divorce and Family lawyer, I have represented numerous clients on each side of the following scenario: “A divorced woman has started living with her boyfriend.” Clients often start off a initial consultation with one of two questions:

How do I prove my ex-spouse is cohabitating so I can stop paying alimony?
If I cohabitate could I lose my alimony?

In the past few weeks several news articles have been published regarding a cohabitation case recently decided by the New Jersey State Appellate Court.

In this case, the plaintiff, Eric Gould, argued that the alimony payments he was making to his ex-wife should be modified or terminated because she was cohabitating with her boyfriend. To his point, the divorce agreement did include a line “”In the event of Wife’s cohabitation, the Husband may, at his option, make all appropriate applications to the Court to have alimony terminated in accordance with the then existing law of this State.”

However he had to prove that she was actually cohabitating. To do so, he hired a private investigator, peeked in his ex-wife’s mail box, and presented the findings to the court. He alleged that the boyfriend kept a substantial amount of clothing at her house, vacationed with her and the children, helped with homework and even took on the responsibility for certain chores. He claimed the boyfriend had received mail to the house, and on six observed nights, the boyfriend was at the woman’s home for a portion of each one and stayed for three full nights.

While the ex-wife acknowledged the romantic relationship, she refuted the claim that they were cohabitating claiming the clothing was minimal, and while yes, he did help with homework and chores, he has his own established residence, does not contribute to the her household financially, and they do not have a marital type relationship.

So what happened?

The court decided (click here for the official decision) (1) you need to have a lot of evidence to prove cohabitation. In the decision, the court went as far as to say that the claim of cohabitation in this case was “completely unsubstantiated,” and (2) the agreements concerning alimony in the original divorce will stand and Mr. Gould will pay in diminishing amounts until 2019.

The court ruling continued, clarifying cohabitation (citing case law) as an “an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage,” which 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” including “”stability, permanency and mutual interdependence.” And, even a couple is living together full-time, cohabitation still may be enough to change alimony unless there is a substantial economic benefit resulting from the cohabitation.

So, even though a couple may “spend considerable time together, as people in romantic relationships often do, is not sufficient to establish a prima facie case that they share a marital-type relationship.”

Whether you currently give or receive alimony, or if you may in the future, our expert New Jersey divorce and family lawyers would be happy to evaluate your case and aggressively fight in the interest of your best financial future. Please give us a call at (732) 246-0909 to set up a free initial consultation.