Cohabitation Under NJ Law: Can You Stop Paying Alimony?

Your ex-wife and her lover are living together full time.

You know that it is true because your kids tell you that "Jim" lives there, and you see his Audi there every time you drop your kids off or pick them up.

You feel that it's bad enough that you were forced to pay her so much alimony in the first place, but now you're basically supporting "Jim", too?

Can you just stop paying her alimony based upon her cohabitation?

No.

You first need to apply to the Court for a court order ending your alimony obligation.

Will you automatically win?

Well, you may win but there is nothing "automatic" about the process.

The New Jersey laws dealing with what is a "cohabitation" that should end your alimony obligation are complex.

The facts of your case are different from the facts of every other case.

That is why you need a Superior Court Family Court judge to decide your case by applying NJ law to the specific facts of your case

LET'S START WITH THE LAW

New Jersey’s alimony law says:

"Alimony may be ...terminated if the recipient of alimony 'cohabits' with another person." (NOTE: the word is not "cohabitates".)

Sounds easy enough, right?

Not so fast.

Because the definition of "cohabits" is more complex than one might initially think.

This means that just because you feel strongly that your ex is living with her boyfriend, that is not enough under NJ law for you to simply stop paying your court-ordered alimony.

Let me explain...

The NJ alimony statute defines "cohabitation" as:

"... a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage..."

Your analysis of your case then should start with an analysis of 3 factors:

1.  Is the relationship "mutually supportive" and "intimate" and "personal"?

2.  What "duties" have your ex and her boyfriend undertaken "... that are commonly associated with marriage..."?

3.  What "privileges" exist between your ex and her boyfriend "...that are commonly associated with marriage"?

To determine if the relationship is "mutually supportive" and "intimate and personal", the Judge will likely ask questions like:

     a.  are the parties living together?

     b.  If they are not living together, what is the frequency of their contact?

     c.  Does the couple have intertwined finances such as joint bank accounts and other joint holdings?

     d.  Does the couple have joint financial liabilities?

To determine duties, the Court will be interested in things like:

     a.  have they added the boyfriend's name on the contract with the electric company or the water company?

     b.  Does he let her dogs out early every morning?

     c.  Does he take the garbage cans out weekly and then bring them back in?

     d.  Does he drive her (ie, "your") kids to school in the morning?

     e.  Does she cook meals for him regularly?

     f.  Does he regularly do the dishes?

     g. Does she shop for his food?

To determine privileges, look to:

     a.  Recognition of the relationship in the couple's social and family circle;

     b.  Sharing or joint responsibility for living expenses;


The statute makes two additional comments that I think are significant:

1.  In evaluating whether cohabitation is occurring and whether alimony should be suspended or terminated, the court shall also consider the length of the relationship.

2.  A court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis."

LETS LOOK AT 3 OF MY RECENT CASES TO HELP YOU UNDERSTAND

Let me give you 3 examples of 3 recent cohabitation cases that I had to try to make this murky distinction easier for you to understand.

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, we 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.

SO WHAT IS MY POINT?

My point is that these are not simple cases.

Most people who pay alimony don't want to. And most recipients of alimony will do whatever they can to not lose it.

These basic human feelings are complicated by the fact that each case is different.

Therefore each case requires a methodical analysis of the facts.

Then you need an expert to help you develop a creative legal strategy if you are going to have a real chance at stopping alimony.

The same holds true if you are receiving alimony, and your ex alleges that you are cohabiting, and that fairness requires that your alimony should end.