Edward R. Weinstein, Esq.

How Do I Prove That My “Ex” is Living With Someone?

As a New Jersey Divorce Lawyer, I have always found this area of NJ Family Law to be one of the most unfair, specifically to the person paying alimony. Most recently, a new case came down that disturbs me as, in my opinion, has made the law of “cohabitation” in New Jersey even more unjust. This blog shall explore the law as it presently stands, this brand new case and how the pending New Jersey Alimony Reform may make the law more fair in this area of the law.

Under present New Jersey Divorce Law, cohabitation occurs (in a court of law) is when the couple bears the “character of a family unit as a relatively permanent household.” Furthermore, the relationship must show “stability, permanency and mutual interdependence.” One of the lead cases further states that when the couple is in an intimate relationship wherein they undertake duties and roles that are commonly known to be like those in a marriage, cohabitation exists under NJ Divorce Law. Examples given in this case include but are not limited to:

1. Living together;

2. Comingled finances;

3. Sharing living expenses;

4. Sharing household chores;

5. The couple’s social and family circle recognizes the relationship as one of a “married” couple.

Now, in this brand new case the guy paying alimony appeared to do everything he needed to do to prove his case when he filed his motion. He alleged that his ex-wife’s boyfriend had a “sham residence” as he spent most of his time at the ex-wife’s home. He further claimed that the boyfriend had a full closet of clothes in her home, helped with the children and household chores and went on vacation with the children. He also had a piece of mail sent to the boyfriend at the ex-wife’s house. The private investigator hired by this fellow stated that he observed the boyfriend over at the ex-wife’s house on at least six occasions; 3 partial nights and three overnights with the children.

On the other hand, while acknowledging the romantic relationship the ex-wife denied that they were cohabitating together. She further admitted that her boyfriend had exercise clothes at her house, took the trash out, helped with the children and went on vacation with them. However, she points out that they never commingled their finances and that her boyfriend did not pay towards any of her household bills.

The ex-husband lost! His motion was denied and he was not permitted to have a trial to prove his case. While the trial court noted the three overnights, the Court also pointed out that there was no proof of a “sham residence.” The trial court did not find that taking vacations and one piece of mail was enough to prove a “marital-type relationship.” When the husband appealed, he lost again!

Overall, I do not agree with this decision. In doing my own legal analysis, it does not escape me that there was no “proof” that the boyfriend had a “shame residence.” If I was the lawyer for the ex-husband, I would have made sure we submitted this key piece of evidence. Having said that, I do not think that this decision is fair. All of those other factors should have, at a minimum, allowed the ex-husband to have a trial and testimony taken of the ex-wife and her boyfriend. Regretfully, in my legal opinion, the boyfriend was never afforded his “day in court.” It is also my opinion that the ex-wife spoke to a expert NJ Divorce Lawyer in order to “plan” things like no joint bank accounts and that the boyfriend must be sure maintain a “sham residence” so that the ex-wife did not lose her alimony payments.

The good news is that the New Jersey Alimony Reform (which is presently making its way through the legislature. If this new law passes, the ex-husband will only need to prove cohabitation for at least 3 consecutive months but would not be required to have a full blown trial to prove his case (which is how the law presently stands even if the initial motion to the Court makes a great case proving that they are living together). As my office has handled countless cases of this type and as we continue to keep a close eye on New Jersey Alimony Reform, please do not ever hesitate to contact my office to discuss this complex and evolving area of New Jersey Divorce Law.