As a seasoned New Jersey divorce attorney, one of the most disputed issues in family law in the context of cohabitation is alimony. In fact, yesterday in my New Jersey Divorce Lawyer Blog, “New Jersey Alimony Reform Moves Forward,” I addressed how this area of the law continues to develop. In short, I feel if the law as to New Jersey alimony and cohabitation has always been grossly unfair to the payor of alimony. Hopefully, if passed, this area of the law will prove to be more equitable to both parties. I note that the proposed new legislation a judge of the New Jersey Family Court may would not be able to dismiss a claim of cohabitation solely on the grounds that the people do not live “full-time” together. I deem this to be a giant step towards the direction of fairness. Nevertheless, what is the present state of the law? Let’s explore.
Alimony is already a controversial and sensitive topic of discussion, so you can only imagine how messy determining alimony payments can become if a one party starts to live with another person after his or her divorce. In particular in this area, I have worked on a lot of cases in which an ex-spouse wants to stop paying alimony because he or she claims that his or her ex, who is now living with another person, has received a substantial economic benefit as a result of the cohabitation. While this is not always an easy task to determine if there is in fact an economic benefit being received, New Jersey case law does provide insight for the courts to determine whether one party is receiving a substantial economic benefit or not. Lets explore.
One of the first leading cases in New Jersey that addressed this red-hot issue was the case of Garlinger v. Garlinger, 137 N.J. Super. 56 (App. Div. 1975). In Garlinger, the parties divorced on June 29, 1973. Upon the divorce, Joyce Garlinger was granted among other things, alimony. Only a few months later after the split, Bernard Garlinger alleged that his ex wife had moved her boyfriend into the former marital home and was living with him without benefit of wedlock. Because of this, Mr. Garlinger sought for all alimony payments to be terminated.
Mrs. Garlinger alleged that on occasion her new boyfriend would buy her gifts, but she was not receiving full financial support. Mr. Garlinger filed suit, stating that “gross misconduct by the ex-wife after entry of judgment may in itself justify a reduction or termination of alimony.” This was a new issue for the New Jersey courts to tackle. Whether post-divorce unchastity was a ground for vacating alimony granted to a former wife in divorce had not been considered directly by any appellate court. While Mrs. Garlinger’s choice to have her boyfriend move in was not enough to have her alimony payments terminated, her unchastity did have some effect upon Mr. Garlinger’s obligation to keep paying her alimony. The alimony payments were temporarily suspended.
In 1983, the New Jersey courts were faced yet again with the same issue, this time the case making it all the way to the Supreme Court of New Jersey. The case was Gayet v. Gayet, 92 N.J. 149 (1983). In Gayet, the parties were divorced on July 18, 1978. Pursuant to the divorce decree, Mr. Gayet was ordered to pay Mrs. Gayet $110 a week in alimony. However, Mr. Gayet moved to stop paying his ex-wife alimony on the grounds that she was living with her boyfriend “as husband and wife.” While the trial court found for Mr. Gayet and reduced his alimony payments, the appellate division reversed. The appellate court held that the test for modifying alimony was whether the “relationship had reduced the financial needs of the dependent former spouse.” Once at the Supreme Court level, the court affirmed the appellate court’s decision to apply an economic needs test.
The most recent case to again visit this issue was Reese v. Weis, 430 N.J. Super. 552 (App. Div. 2013). On July 17, 1996 the parties divorced. Reese was ordered to pay his ex-wife Weis $100,000 a year in permanent alimony. Soon after the divorce, Weis and her new boyfriend, Stein, moved in together and in 1998 they bought a house together in New York. Ten years later, Reese filed a motion to terminate alimony, alleging that Weis’s cohabitation grounded the termination.
At trial, the court focused on the financial arrangements between Weis and Stein. When the couple bought their house, Weis paid 4/7 of it and Stein the remaining 3/7. Additionally, the couple took vacations together, celebrated holidays together, and even owned a joint checking account together. It was clear, and the couple conceded, that there was no straightforward arrangement on what was personal and was a joint expense.
The trial court held for Reese and terminated the alimony. Additionally, the appellate division affirmed. It explained that cohabitation involves “an intimate relationship requiring more than a common residence, where the couple has undertaken duties and privileges that are commonly associated with marriage, such as intertwined finances, shared living expenses, household chores, and recognition of the couple in the family and social circle.” The test that the appellate division applied was the economic benefit test. “When determining whether an economic benefit is received in the context of cohabitation, the court must consider not only the actual financial assistance resulting from the new relationship, but should also weigh other enhancements to the dependent spouse’s standard of living that results from the cohabitation.”
Here, the court held that Weis’s lifestyle was greatly enhanced once she began living with Stein. This equated to a tangible economic benefit from the new living arrangement. While these three cases shed light on the issue of alimony and cohabitation, the area still remains questionable. There still is no bright line test for a court to reference when determining whether alimony should be terminated, reduced, or temporarily suspended when cohabitation is alleged as a ground. My office will continue to monitor this red-hot issue as more cases address the unresolved questions. Thank you.