What Must My Lawyer Show In Court In An Alimony Cohabitation Reduction Case?

What Must My Lawyer Show In Court In An Alimony Cohabitation Reduction Case?

The New Jersey Appellate Division directs the attorneys at our law firm towards N.J.S.A. 2A:34-23(n) which addresses cohabitation with respect to alimony in the state of New Jersey.  Our attorneys are well versed in this statute which states that alimony may be terminated or suspended if the person receiving alimony cohabitates with another person, meaning the person receiving alimony is involved in a relationship in which the couple has assumed duties that are typically associated with marriage.  The New Jersey Appellate Division stated that in order to determine cohabitation under the statute, the following factors must be considered: the intertwining of finances; sharing living expenses; outside recognition of the relationship; living together most of the time; sharing household responsibilities; other relevant evidence. 

            In Schmitt v. Lupo-Schmitt, the parties were married and later divorced in October 2014.  At the time of the divorce, the parties signed a marital settlement agreement, which is an agreement between the parties that sets out the terms of the divorce such as alimony, property division, and child support and custody.  According to the marital settlement agreement, the husband agreed to pay the wife $1,500 per month for six years as limited durational alimony, which was set to begin after the parties’ marital home was sold and the marital debts were paid from the sale of the marital home.  The parties also agreed in the marital settlement agreement that alimony would terminate if the wife cohabitated with a person of the opposite sex.  Despite the parties’ marital settlement agreement, the husband did not begin paying alimony or child support in June 2015 when the marital home was sold.  On March 10, 2016, the Superior Court of New Jersey Family Part ordered the husband to begin making payments.

            After the parties sold the marital home, the wife moved in with her sister.  The wife lived with her sister until the following February when she moved in with her best friend’s father.  The friend’s father allowed the wife and children to live in his home until she could get back on her feet financially and could obtain affordable housing.  The wife’s best friend’s brother also lived in the home with the father.

The husband filed a motion with the court on May 23, 2016 seeking to terminate his alimony obligation because the wife was cohabitating with a man who the husband believed was providing for the wife financially.  The husband claimed that the wife and man, who was a lawyer, were living together and sharing household daily activities.  The husband noted that the wife and man had been friends for forty years, but now the wife and man were living as a family and the man was providing daycare for the parties’ children, as well as providing the wife with legal advice.  The wife opposed the husband’s motion and stated that she was not hiding that she moved into the home with the man, nor was she romantically involved with the man.  The wife’s attorney sent the husband a letter requesting that he withdraw the motion because it was unfounded and frivolous.  The letter also requested that the husband pay the wife’s attorney’s fees. 

The court ordered the parties to provide discovery.  The wife’s discovery included certification from the man that he was not providing for the wife financially and that he was not caring for the wife’s children.  The certification also indicated that the man and the wife were not involved romantically.  In support of the man’s certification, the wife provided copies of her earning and bank statements.  The wife also provided evidence that she had applied and reapplied for affordable housing, as well as evidence that she had been placed on the affordable housing waiting list.  After discovery was exchanged and oral argument was given, the court denied the husband’s motion and awarded the wife attorney’s fees.  The husband asked the court to reconsider the award of counsel fees.  The court reduced the amount of the award, but the husband appealed the court’s decision.

The trial court judge denied the husband’s motion on October 3, 2016.  The judge’s opinion indicated that he considered the factors under N.J.S.A. 2A:34-23(n)(1)-(7) to determine cohabitation.  The judge stated that the husband had a meritless claim because it was clear that cohabitation was not established based solely on the fact the wife was living with a person of the opposite sex.  The judge also awarded attorney’s fees to the wife.  The husband sought reconsideration of the court’s decision, but the court denied the husband’s motion for reconsideration on December 20, 2016. 

On appeal, the husband claimed the court was wrong to find the wife was not cohabitating.  Additionally, the husband claimed that the court was wrong to deny his motion to reconsider the award of counsel fees.  The New Jersey Appellate Division agreed with the trial court judge’s decision and affirmed the lower court’s opinion.  The Appellate Division stated that N.J.S.A. 2A:34-23(n) addresses cohabitation with respect to alimony.  The statute states that alimony may be terminated or suspended if the person receiving alimony cohabitates with another person, meaning the person receiving alimony is involved in a relationship in which the couple has assumed duties that are typically associated with marriage.  The Appellate Division stated that in order to determine cohabitation under the statute, the following factors must be considered: the intertwining of finances; sharing living expenses; outside recognition of the relationship; living together most of the time; sharing household responsibilities; other relevant evidence.  The Appellate Division found that the husband did not establish any of these factors regarding the wife living with her best friend’s father and brother.  The court found that the husband failed to show that the best friend’s father or brother was providing for the wife or her children financially or that they were sharing household chores and activities with the wife. 

The New Jersey Appellate Division stated that N.J.S.A. 2A:34-23(n) addresses cohabitation with respect to alimony.  The statute states that alimony may be terminated or suspended if the person receiving alimony cohabitates with another person, meaning the person receiving alimony is involved in a relationship in which the couple has assumed duties that are typically associated with marriage.  The Appellate Division stated that in order to determine cohabitation under the statute, the following factors must be considered: the intertwining of finances; sharing living expenses; outside recognition of the relationship; living together most of the time; sharing household responsibilities; other relevant evidence. 

The husband argued that he was not able to demonstrate evidence of the factors for cohabitation because the trial judge limited discovery; however, the Appellate Division found that the trial judge did not abuse his discretion by limiting discovery because the court granted discovery to allow the husband the opportunity to demonstrate the possibility of proving cohabitation.  Additionally, the Appellate Division held that the trial judge did not abuse his discretion in awarding the wife attorney’s fees because the judge followed the criteria set forth in the applicable statutes.  Ultimately, the Appellate Division agreed with the trial court and affirmed its decision. 

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