How Hard Is It To Prove Cohabitation And Stop Paying Alimony?

It is difficult but not impossible, depending upon your facts. The good news is that the law of cohabitation and alimony was “modernized” in New Jersey back in 2014 which was part of the greatest overhaul I have ever witnessed to divorce and alimony laws since I became practicing divorce lawyer in New Jersey back in 1995.

Attorneys must provide facts and legal arguments to present to a judge of the Superior Court of New Jersey so that the court may consider a number of factors when deciding whether cohabitation exists. These include, but are not limited to:

  • Commingling of finances such as joint back or credit card accounts;
  • Sharing living expenses such as mortgage and rent payments;
  • Friends and family consider the relationship as a committed and intimate one such as attending holidays, weddings or funerals together;
  • How long has the relationship existed;

A major change in the New Jersey’s alimony law and cohabitation is that it is no longer required to prove actual cohabitation. This is because before the changes in the law folks would draft fake leases for apartments they rarely stayed at because the law of cohabitation was so rigid that often this was deemed to be enough proof. Now these games are over.

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Nevertheless, it is still hard to prove cohabitation. In the following case, one of the reasons the petitioner failed to prove cohabitation was because he failed to have his private detective update their report before filing his motion.

In Gilles v. Gilles, the parties were married and had four sons born of the marriage. The parties were continuously filing motions with the court regarding financial issues while their divorce was pending. The parties’ divorce was finalized on September 26, 2011, but the extensive motion practice continued.

The Superior Court of New Jersey Family Part determined in an April 7, 2015 order that the ex-wife receives $135,000 per year in alimony, which is subject to increase if the ex-husband earns more than $500,000 per year. In 2013, the ex-husband earned approximately $759,000. The majority of the parties’ post-divorce issues centered around the provision in the parties’ matrimonial settlement agreement (“MSA”), which stated that the ex-husband was to provide the ex-wife with his yearly financial records. The parties agreed to this provision so that the ex-husband’s alimony and child support obligations could be increased if he earned over $500,000 in a year. On at least two occasions, the ex-husband has been found in violation of the MSA. In past years, the ex-husband’s annual income has exceeded $3 million. On April 7, 2015, the court found that the ex-husband violated the MSA. The court awarded the ex-wife $7,200 in attorney’s fees because the ex-husband acted in bad faith by deliberately ignoring the MSA. Also, the court indicated that the ex-husband’s replies to the ex-wife’s requests for financial records were troubling.

The ex-husband hired a private investigator to watch the ex-wife’s home over a ninety-day period from February 9, 2015 to April 4, 2015. The private investigator reported that the ex-wife’s boyfriend had stayed overnight at the ex-wife’s house thirteen times over twenty-nine days. The private investigator also reported that the ex-wife’s boyfriend had helped shovel snow off the driveway, retrieved the mail, and entered the home when neither the ex-wife nor the parties’ children were home. During oral argument, the court noted that the ex-husband did not receive an updated report from the private investigator before filing a motion to terminate his alimony obligation based on cohabitation. The court found that the ex-wife and her boyfriend were not cohabitating. The judge stated that the ex-wife and her boyfriend were not mingling finances, did not share living expenses, and not sharing household duties. Also, the judge stated that the ex-wife and her boyfriend did not even refer to themselves as “boyfriend and girlfriend” to family and friends, although they were clearly in a dating relationship. The judge found that the boyfriend’s activities around the house were merely chivalrous, and that the ex-wife and her boyfriend were just dating and not living together. The judge then found that the ex-husband clearly had the means and ability to pay the ex-wife’s attorney’s fees, since his finances indicated he earned substantially more than the ex-wife. The judge ordered the ex-husband to pay $7,062.17 toward the ex-wife’s attorney’s fees, which totaled $10,593.25.

On appeal, the ex-husband argued that the trial court’s decision was not supported by credible evidence and that the court improperly determined that he had to pay attorney’s fees but not the ex-wife. The New Jersey Appellate Division noted that under N.J.S.A. 2A:34-23, alimony may be suspended or terminated if the person receiving alimony cohabitates with another person in a way that is associated with marriage or civil union. Under the statute, the people cohabitating must be in a jointly supportive, intimate personal relationship. Factors to consider to determine cohabitation include shared bank accounts or intertwined finances, sharing living expenses and responsibilities, recognition of relationship status to family and friends, shared household duties, promises of support, and living together, among others. The Appellate Division stated that a change in circumstances is the same standard to determine modification or termination of alimony as cohabitation because cohabitation is itself a change in circumstances. The Appellate Division also stated that a finding of cohabitation and modification or termination of alimony is up to the Family Part judge’s discretion. The court noted that Family Part judges are experts in the area of law and their decisions should not be reversed when they are supported by credible and reliable evidence. Similarly, decisions to award attorney’s fees are up to the discretion of the Family Part judge. When deciding to award attorney’s fees, the court should consider factors such as the ability of the parties to pay their own legal fees, the financial stability of the parties, the good faith of the parties when engaging in legal proceedings, the extent of the legal fees, any previous fee amounts paid or awarded, and any other factors that help determine fairness.

The Appellate Division agreed with the lower court’s determination that the ex-husband did not demonstrate that the ex-wife and her boyfriend were cohabitating based on the applicable law. The court reasoned that the lower court judge concluded that the ex-wife and her boyfriend were not cohabitating based on the totality-of-the-circumstances. The court stated that the ex-husband showed that the ex-wife’s boyfriend stayed overnight at the ex-wife’s home a number of times, but the number of times was limited and the ex-husband did not show that the boyfriend lived there. The Appellate Division then noted that if the ex-husband did not demonstrate that the ex-wife was cohabitating with her boyfriend, then no plenary hearing or discovery was necessary or justified. Lastly, the Appellate Division stated that the lower court judge could have expanded more on her reasoning regarding awarded attorney’s fees to the ex-wife; however, the court indicated that the lower court judge clearly considered the factors in her decision to award attorney’s fees to the ex-wife.  The Appellate Division stated that the lower court clearly considered that the ex-husband earned five times the amount of money per year that the ex-wife earned, which was only the alimony she received from the ex-husband, totaling $135,000 per year. The court also noted that the lower court indicated that the husband’s motion was not made in good faith. Ultimately, the Appellate Division agreed with the lower court and held that no abuse of discretion occurred.

As cohabitation and alimony are one of the more complex areas of New Jersey divorce law, you want a lawyer who only handles family law matters. The lawyers at our law firm invite your inquiry.