On September 10, 2014, New Jersey alimony laws received a dramatic overhaul. The goal is to “modernize” alimony laws to reflect the many changes in our culture and society. As an attorney who only handles divorce and family law cases, I applaud many of the changes. Specifically regarding how the law shall now affect cases in which the recipient of the alimony payments is living with their new significant others. So what happens if the cohabitation was occurring before the laws were changed? Well, a new decision from the New Jersey Appellate Division examines this precise issue.
N.J.S.A. 2A:34-23(n) and amended alimony laws on cohabitation. With the amendment, a party would now only have to prove cohabitation as a basis for terminating alimony. This lessened the burden of proof a party seeking to terminate alimony carried because he or she would no longer have to show that the cohabitating spouse was receiving some form of economic benefit from the cohabitation. However, if the cohabitation arose prior to the statute’s enactment, but the case was brought afterward, the court would apply the old alimony laws. That was the case in Schlumpf v. Schlumpf, decided just last week.
In the case the parties married in September 1991 and divorced in June 2005. The final judgment for divorce included a matrimonial settlement agreement, which required the husband to pay limited term alimony for eight years through August 2013. Additionally, pursuant to the agreement alimony could be modified or terminated if the wife began cohabitating with a new boyfriend.
In the summer of 2012, the husband learned that his ex-wife began living with her new boyfriend. The boyfriend had moved in with the wife into her town home in New Jersey. That prompted the husband to file a motion to terminate his alimony obligation immediately. However, the court denied the motion because the husband only established cohabitation; he did not present any evidence of his ex-wife receiving an economic benefit.
A few months later in November 2012, the wife let her ex-husband know that she was moving to a new home. She gave her ex her new address, which led him to conduct a title search. The search revealed that the new home the wife was moving into was owned by her boyfriend. In addition to the title search, the husband asked his children if their mom was living full time with her new boyfriend, to which they said yes. As a result, the husband filed another motion to terminate alimony, effective December 1, 2012, the date of cohabitation or the filing date of his motion which was April 3, 2013.
As a response, the wife filed a cross motion and certification requesting the court to deny her ex’s motion. She certified that she moved into her boyfriend’s house on December 1, 2012 and stated that her financial needs decreased by her prior $2010 rental expense. Additionally, the wife certified that she did not have a joint bank account with her boyfriend and that she still paid for some expenses at his home. However, she did agree to terminate alimony as of April 1, 2013.
After the wife agreed to terminate her alimony, a new trial judge reviewed the husband’s motion and ordered alimony terminated as of April 1, 2013. She stated that the wife had consented to the date and that the husband had initially provided April 3rd as an alternative date. Therefore, April 1, 2013 seemed to be in both parties’ best interests. However, the husband was dissatisfied with the decision of the lower court and appealed.
On appeal, the husband argued that the lower court erred by terminating alimony as of April 1, 2013. The husband alleged that the court should have terminated his alimony obligation as of the date his ex-wife moved in with her boyfriend. The New Jersey Appellate Division began its discussion by considering the statutory amendment introduced on September 10, 2014, N.J.S.A. 2A:34-23(n). The court explained that the amendment provides a court with discretion to terminate or suspend alimony if the party receiving the alimony began to cohabitate with another. Before its enactment, not only did a party have to prove cohabitation, but there also must have been proof that the cohabitating spouse was receiving some form of economic benefit from the cohabitation.
The court stated since the matter arose prior to the statute’s adoption, the review would be guided by prior cohabitation jurisprudence. Applying the law the was in effect before the statute, the Appellate Division reversed the findings of the lower court. It held that there was no evidence to support the trial court’s selection of April 1, 2013 for alimony termination based primarily on the wife’s consent to the date. Instead, the Appellate Division stated that the wife had not provided any information demonstrating her inability to be self-sufficient without continued support from her ex-husband. Since she failed to meet this burden of proof, the court reversed and remanded the decision back to the lower court to address the termination or modification of alimony payments.
The important takeaway from this brand new case is that it is crucial to determine when cohabitation began, either before or after New Jersey’s new alimony laws went into effect. For more information regarding this area of the law, please do not hesitate to contact my office today.