Edward R. Weinstein, Esq.

Will I Lose My Alimony Just Because I Am Living With My Sister?

After having handled thousands of divorce cases here in New Jersey, I know that alleging cohabitation is the most popular basis for modifying or terminating alimony. However, as an experienced a seasoned attorney I am well that this area of divorce law is highly fact sensitive and complex. This is one of many examples as to why it is essential that you hire a lawyer who only handles divorce and family law related cases.

FIRMGROUPSHOT

A recent New Jersey Appellate Division decision Rodrigues v. Rodrigues addresses this issue and demonstrates how “fact sensitive” the law of cohabitation and alimony is in the state of New Jersey.

In the case, the parties divorced on October 19, 2010 after being married for twenty years. The parties incorporated a property settlement agreement into their final judgment of divorce, which among other things, required the husband to pay his wife permanent alimony of $16,500 per year. Yet pursuant to the agreement, the husband reserved the right “in the event of his wife’s cohabitation with another person to make an application to reduce or terminate alimony.”

At the time the parties divorced, the husband was making $83,657 a year and the wife made $8022 over a thirty-three week period. However, after the divorce, the husband alleged that his ex-wife was voluntarily underemployed, but had potential rental income from a piece of property in Portugal she inherited.

On May 24, 2012 the husband filed a motion with the court to modify his alimony obligations. He submitted a certification attesting that he had become unemployed and was only receiving unemployment benefits totaling $560 per week. Because of this, the husband stated that he was unable to pay $1375 a month in alimony like he had been. As a response, his ex-wife opposed the motion and filed a cross motion to enforce his alimony obligation to her.

In June 2012, the court heard oral arguments from both parties. The husband argued that he had lost his job due to the downturn in the construction industry and could no longer afford to pay so much in alimony to his ex-wife. Additionally, he argued that his ex-wife began to cohabitate with her sister. Therefore pursuant to the parties property settlement agreement, he was entitled to make an application to reduce or terminate his alimony obligation.

On the other hand, the wife argued that she had separated during the marriage and went to live with her sister. She continued to live with her sister ever since. Furthermore, the wife argued that her ex-husband was aware that she was living with her sister when they negotiated the property settlement agreement. Therefore, he should be prevented from claiming cohabitation as a basis for terminating alimony. Moreover, the wife argued that in 2011, the year after the parties were divorce, her ex-husband earned over $82,000 and had purchased a home. Even though he had since lost his job, the monthly expenses listed in his Case Information Statement suggested his ability to keep paying alimony.

After hearing both parties’ arguments, the trial court denied the husband’s motion. It found that he had failed to demonstrate a prima facie case of changed circumstances to warrant modification of the property settlement agreement. Furthermore, the court held that the wife was not impermissibly cohabitating with her sister because the husband knew she was living there all along. The husband appealed.

On appeal, the husband alleged that the trial court erred in denying his motion. He argued that because he was unemployed and his wife was still cohabitating with her sister, he should not be liable to pay alimony to her. However, the Appellate Division affirmed the findings of the lower court. It first stated that the husband had begun to pay alimony to his wife with the full knowledge that she was living with her sister.

Furthermore, the court believed that was strong evidence to support its conclusion that the wife living with her sister was not intended to mean cohabitation within the meaning of the property settlement agreement.

Additionally, the Appellate Division held that the husband failed to establish changed circumstances. The court noted that temporary unemployment or a reduction in income cannot support a request to modify or terminate alimony. Rather, the husband must suffer a permanent change to his income in order to have his alimony obligation modified or terminated.

For more questions regarding New Jersey’s alimony laws and how they relate to cohabitation, please contact my office today.