Does Cohabitation End Alimony In New Jersey?

In New Jersey, if an alimony-receiving ex-wife and her lover move in together, does her alimony automatically end?

No.

Does having a boyfriend but NOT moving in together guarantee an ex-wife that the ex-husband will required to continue paying alimony?

No.

Obviously, this is not easy stuff.

Rather, the New Jersey laws dealing with what exactly is a "cohabitation" that will justify a Court in terminating a payor's alimony obligation are complex.

Every case is different and will be decided based upon the specific facts of that case.

But there are patterns that can help you understand where your case would likely fall if it was brought before the  Court.

I'm going to share with you 4 cases that I've dealt with to show you what type of things "win the day" and what type of things "lose the day" when it comes to a payor of alimony's request to end his alimony obligation based upon cohabitation of his ex-wife with a new lover.

Let's start with the law.

New Jersey’s alimony law says:

"Alimony may be suspended or terminated if the [recipient of alimony] cohabits with another person."

Sounds easy enough, right?

Not so fast.

Because the same law also says, “A Court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis.”

That means that if a woman who is receiving alimony has a boyfriend, and “…the couple does not live together on a full-time basis…”, that fact alone is not enough for a Judge to conclude that “cohabitation” is not taking place.

Weird, right?

I mean, come on…isn’t cohabitation just another way of saying “living together”?

Not necessarily under NJ alimony law.

The NJ alimony statute defines "cohabitation" like this:

Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.

The New Jersey alimony statute goes on to assist judges in reaching their decisions by telling the judges what type if information they must consider:

 

When assessing whether cohabitation is occurring, the Court shall consider the following:

(1)Intertwined finances such as joint bank accounts and other joint holdings or liabilities;

(2)Sharing or joint responsibility for living expenses;

(3)Recognition of the relationship in the couple's social and family circle;

(4)Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;

(5)Sharing household chores;

(6)Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S.25:1-5; and

(7)All other relevant evidence.

In evaluating whether cohabitation is occurring and whether alimony should be suspended or terminated, the court shall also consider the length of the relationship. A court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis."

 

Let me give you 4 examples of 4 cohabitation case that I had to try to make this murky distinction easier for you to understand.

The revised NJ alimony statute that I am referring to took effect in 2014.

It changed this part of the law dramatically.

I'll share with you a summary of the facts of one pre-2014 case and three post-2014 cases to try to give you some clarification as to what the law now means.

In the pre-2014 case, I represented the husband. 

In the three post-2014 cases, I represented the wife. 

In the pre-2014 case where I represented the husband, one of New Jersey's best family court judges came up with what I thought was the wrong decision.  This demonstrates how difficult it can be to win one of these cases, because even when an experienced divorce lawyer has what is clearly to him a "winner", the judge may see things differently.

In that case, the parties had been divorced for about 10 years, the husband earned over $1,000,000.00 a year, and the wife was earning about $30,000.00 a year.

The husband was paying $150,000.00 per year as alimony and he believed that the wife was "cohabiting in avoidance of marriage."

He hired me to try to end alimony.

The Judge did not change alimony for the following reason.

First, we took the approach that we needed an investigator.  You must have an investigator in almost all of these cases.  The recipient of alimony is virtually never going to just say "I'm cohabiting."

Rather, it has to be proven.

In this case, I told my client that because he was paying $150,000.00 as alimony and because he could afford an investigator, and because at that time the law gave very little guidance as to exactly what was and what was not "cohabitation" that would end alimony, we should hire an investigator and that investigator should spend a lot of time investigating.

In particular, I advised the client that the investigator should go for at least every day for 1 month and perhaps 2 months to hopefully be able to show the Court that in a 30day period how many overnights the wife was spending overnight with her boyfriend.

You see, in this case, the wife was very smart. 

She and her boyfriend concocted a scheme whereby he rented a "home" for about $500.00 a month that he used supposedly as his "home" and his office.

The home was literally 8 feet from commercial railroad tracks!  It would be difficult for anybody to really sleep there.

Additionally, it was in a commercial area with crushed cars stacked in the parking lot surrounding the "home." The "neighborhood" was pretty commercial.

The investigator proved that out of 31 days in the month that he conducted surveillance, the boyfriend slept at the wife's house 24, spending seven nights somewhere (either in his "home" or someplace else that the investigator could not track.)

The investigator proved that the boyfriend on 24 out of 31 days arrived at the wife's home at about 6:00 p.m., that the lights went out at about 10:00 p.m., that the boyfriend's car was in her garage before they went to bed, that at approximately 2:00 to 3:00 a.m. every night the light in the bathroom went on and he was able to see a male figure briefly in the bathroom, that at 7:00 a.m. the male figure was seen taking the dog outside, and that at 8:00 a.m. the garage door opened and the male figure left the home in his car, only to return at 6:00 p.m. and repeat the same cycle 24 out of 31 days that month.

The judge did not rule that to be cohabitation.

I was stunned.

Nonetheless, that was a pre-2014 case and the law gave us very little guidance as to exactly what was meant by "cohabitation in avoidance of marriage" that would end alimony.

Now I would like to compare that case to three post-2014 cases, in all of which I represented the wife (clients I'll refer to as "K", "H", and "C", respectively.

First, in the case involving K, the husband hired an investigator, but his work product was shoddy. 

First, he didn't put his investigator's license number on his letterhead which led me to wonder if he really was licensed.  I raised this issue which caused him a lot of embarrassment.  At the end of the day, it turned out that he was licensed, but just sloppy.

Second, he wrote a report in which he concluded that my client "K" and her boyfriend were "cohabiting such that alimony should end", but he did not give specific facts upon which he relied.

On cross-examination, I showed him his report and I asked him how many days elapsed from the beginning of his report until the end of his report. 

In trying to calculate the number of days, he fumbled and was not able to tell the Court how many days were in the month of September, or in the month of October, or in the month of November! 

(I guess they didn't teach him the old poem in first grade "30 days has September, April June and November …" etc. Or maybe he didn't attend first grade. I don't know...he wasn't the brightest light in the sky. Anyway..."

He then was only able to show that he had proof of some degree that the wife actually spent the night with her boyfriend on a few occasions over a 3 month period.

He was not credible.

We ended up settling that case in a way that  preserved K's alimony entitlement fully, but pretty clearly if we had finished the trial, the judge was not going to buy this investigator's testimony at all. (LESSON: hire a competent investigator.)

Then in the case involving H, the parties had been divorced for about 20 years and the husband hired an investigator to prove that the wife was living with a boyfriend and that alimony should terminate.

In this case, the investigator did a better job than in the case involving K that I described above.

In particular, the investigator was able to provide enough evidence to show that H really was living with this man virtually full time.

We defeated his alimony claim, though, by advising him that even though he had that proof, we were going to show that the relationship was not sexual, but rather this woman was taking care of an old friend.

The lynch-pin was we said that because this woman didn't have an increase in the amount of alimony that she was receiving in the last 20years, and because her ex-husband had received significant pay raises, not only did we intend to win on the cohabitation issue, but we were coming back to Court for a significant increase in alimony.

That threat caused the husband to drop his case, and the wife still receives alimony today.

The third case involved C, a woman who had received alimony for about 15 years after her divorce.  She had only been married for 13 years. In this case the ex-husband hired a very good detective who proved that C was living with her boyfriend on a full time basis and she was flaunting the fact that she was not working all over social media. 

In that case, the husband had C cold and she agreed to terminate alimony, but the husband was seeking a retroactive termination of a year or more which would have cost C over $50,000 in alimony overpayments dating back to the day that C began cohabitating with her boyfriend.

In settlement negotiations, undefinedwe were able to get the husband to not only drop the part of his claim seeking those extensive overpayments of alimony, but to also continue paying alimony until December 31 of that given year.

My point is that the test as to whether a recipient of alimony is or is not cohabiting has changed dramatically during the 35 years that I have practiced divorce lawyer here in New Jersey.

These are not simple cases and require a methodical analysis of the facts involved coupled with creative legal preparation.

We have a protocol in my office for efficiently evaluating cases where a payor of alimony believes that his ex is cohabiting in avoidance of remarriage just to force him to keep paying alimony and is looking at whether he can stop paying alimony.

The same protocol is used when we represent a recipient of alimony who is resisting the payor's efforts to terminate alimony by taking the position that she is not "cohabiting" as that word is defined by the NJ alimony statute.

If you need help with a possible cohabitation issue, feel free to contact my assistant, Valerie, at (732) 845-9010.

Valerie will set up a Zoom conference for us to analyze the particular facts of your situation against the law to help you come up with an effective strategy.

Until next time,

Steve
Steven J. Kaplan, Esq.

Specializing In Divorce
Throughout New Jersey

5 Professional Circle
Colts Neck, NJ. 07722

www.KaplanDivorce.com
(732) 845-9010

Topics: Alimony