As an experienced divorce attorney I know first-hand just how difficult it is to terminate an alimony obligation. In addition, this lawyer always is sure to always advise clients that they must comply with all court orders generated from a New Jersey Family Court. Specifically, if you are looking to modify or terminate alimony and your attorney is successful in establishing a prima facie case on your behalf, the discovery period will commence, often with certain specific documentation being required. Discovery is a procedure by which litigants can obtain evidence and information from the other party that is essential to a cause of action or lawsuit. Refusing to comply with court ordered discovery could lead to sanctions, like paying the other side’s attorney’s fees. The continued disregard of court ordered discovery could lead to the ultimate sanction of dismissal with prejudice. William Null found this out the hard way, after his motion to reduce his alimony obligation was denied with prejudice because of his blatant and continuous defiance of at least ten court orders for essential discovery.
As a seasoned divorce attorney, I have often argued in New Jersey Family Courts that the other party is “voluntarily underemployed” in order to reduce the amount of support that they should be paying to my client. Often, the other lawyer will argue, “Well Your Honor, my client does have a full-time job.” It is times like this that I and the other lawyers at my divorce law firm argue that the Family Part of New Jersey Court’s must also consider that person’s employment history, education and experience and job obtainability. A simple example would be a doctor who earns $300,000 per year. However, just as he realizes that his marriage is heading for a divorce, he quits his job and obtains full-time employment at Home Depot. In this case, before the divorce is finalized, the court would certainly see through this transparent attempt to reduce support and impute the $300,000 upon the doctor.
Timing is everything. Divorce law is constantly evolving in the State of New Jersey, especially with respect to alimony. The attorneys at my divorce law firm know how to keep up and evolve with the fallout of the significant changes to New Jersey’s alimony laws in 2014. Our attorneys study each new case as it comes down from the New Jersey Appellate Division. Under the 2014 amendment to the alimony law, New Jersey Statute 2A:34-23, an alimony obligation can be terminated upon the supported spouse’s cohabitation with another person. This amendment, however, has an “anti-retroactivity” provision, so it only applies to divorces filed after the 2014 effective date.
Alimony is based upon your gross income, unless otherwise ordered by a Judge of a New Jersey Family Court or negotiated in a settlement between the parties and their attorneys.. As divorce lawyers, while our law firm does not provide tax advice to our clients, we do explain how New Jersey’s alimony laws are impacted by taxes. As alimony is a tax deduction to the person paying and taxable income to the person receiving the alimony, the difference between gross income versus net income can be immense.
Over the course of my career as a New Jersey divorce lawyer, the 2014 amendments to the alimony laws in our state were the most revolutionary I have ever seen. Specifically, changes were made to New Jersey alimony laws as it pertains to how a New Jersey Family Court shall evaluate cases involving cohabitation of the recipient of the alimony. For a number of reasons, I believe the law was modernized with respect to cohabitation. This attorney breaks down a recent case that illuminates many aspects of this complex area of New Jersey divorce law.
As I have expressed in the past, in my 20 years as a divorce attorney I have always believed New Jersey’s Alimony laws used to be very unfair with respect to the issue of cohabitation. However, the new alimony laws which were passed in September 201 clearly directs lawyers and New Jersey family law judges that two individuals to not have to be living together full-time in order for cohabitation to be established in a case in which alimony payments may be modified or terminated. In other words, although living together is definitely a factor that courts will consider to determine whether cohabitation exists or not, the frequency of overnight stays together has not yet been affirmatively addressed by statute or case law. However, the recent case Wachtell v. Wachtell recently tackled this issue.
In the case, the parties divorced in October 2009 after being married for more than twenty years. Three children were born of the marriage. At the time of the divorce, the mother had primary residential custody over the children. Additionally upon the divorce, the parties executed a property settlement agreement. Pursuant to the agreement, the wife received property from the husband worth approximately $7-8 million. She also was set to receive permanent alimony, capped at $450,000 per year. However, the agreement did address scenarios in which the husband’s alimony obligation could be terminated. Those scenarios included:
- the death of the husband
- the death of the wife
- cohabitation of the wife with a male that is unrelated to her by blood or marriage in a relationship that is tantamount to marriage (without the need to prove economic dependency)
- the husband’s retirement on or after age 65
- remarriage of the wife
In August 2013, the wife began seeing someone. She sold the marital home and moved to a new house in Little Silver, New Jersey with the children. The new house was located nearby the wife’s new boyfriend’s house. Upon learning that his ex was seriously involved with someone, the husband started to withhold his monthly alimony payments from her. Instead, he started paying the alimony into his attorney’s escrow account and subsequently filed a motion in January 2014 to terminate his alimony obligation altogether based upon his ex wife’s cohabitation.
To support his motion, the husband certified to the court that his wife was spending practically every Thursday through Sunday at her boyfriend’s house. Additionally, they had gone on countless trips together, both domestic and abroad, had accompanied the parties’ daughter to a national horse championship, and had attended major family functions together including holidays and graduations. Furthermore, the husband submitted a supporting certification from the parties’ older son. The wife’s new boyfriend had helped the son get a job working for him at his investment firm upon graduation from college. He also repeatedly asked the son to feed his dogs at his house when he was out of town. On one occasion the son took advantage of the situation and brought his father to the house to take pictures and gather evidence to strengthen his case.
As a response, the wife filed an opposing certification denying that her relationship with her new boyfriend rose to the level of cohabitation. Although she admitted that she slept at her boyfriend’s house two to three nights per week and that they had taken a few trips together, they maintained separate assets, shared no expenses, and each paid their own way on the vacations. Moreover, the wife stated that she and her boyfriend had no taken on “any duties or privileges that are commonly associated with marriage.” In addition, the wife objected to her ex-husband’s use of their older son to act as a spy for him and allow him to enter her boyfriend’s home.
After the wife submitted her testimony to the court, the husband submitted a second set of certifications. This time he submitted statements from the private detective he had hired to watch over his ex-wife for a four-day period. The detective stated that he observed the wife and her boyfriend stay overnight with one another three nights in a row. As a result, the trial court held that the husband had demonstrated cohabitation by his ex-wife within the meaning of New Jersey statutory and case law. The court held that the wife was clearly in a serious committed relationship “tantamount to marriage.” Therefore, the trial court granted the husband’s motion to terminate his alimony obligation. The wife appealed.
On appeal, the wife argued that the trial court erred in finding that her relationship with her new boyfriend was tantamount to marriage. She focused on the fact that no published case in New Jersey had yet to find or affirm a finding of cohabitation where the former spouse and lover were spending three days or less per week overnight together. Additionally, the wife stated that at a minimum her right to alimony should be revived because she ended the relationship with her boyfriend.
The Appellate Division looked to the legal criteria for cohabitation in New Jersey. The court noted that cohabitation is “typified by the existence of a relationship shown to have stability, permanency and mutual interdependence.” Although living together, in conjunction with intertwined finances, shared living expenses and household chores might support a finding of cohabitation, it is not necessarily indicative of cohabitation. The court went on to discuss the procedural aspects of bringing forth a cohabitation claim. The court noted that the person alleging cohabitation would have to present a prima facie case first and foremost. Once determined by the court, the court would have to allow a plenary hearing to take place so that the judge could evaluate the creditability of the competing testimony.
In the case at hand, the Appellate Division believed that the husband did establish a prima facie case of cohabitation. However, it disagreed with the lower court in not ordering a plenary hearing to take place to resolve disputed issues of fact. In particular, the Appellate Division believed that a plenary hearing was necessary to resolve the issue of the frequency of the overnight stays between the wife and her boyfriend. The wife stated that she slept at her boyfriends no more than two or three nights per week, while the husband alleged that she was spending at least four nights with her boyfriend.
Although not completely dispositive, the frequency of overnights stays would be an important factor to consider in any cohabitation analysis. If the court found that the wife was in fact only spending two or three overnights with her boyfriend per week, it would seem like she had more of a romantic dating relationship with him as opposed to a relationship synonymous to marriage. The Appellate Division stated that the trial court should not have presumed without a hearing that two or three weekly overnights would be enough in the case at hand to amount to cohabitation, especially since no published opinion in New Jersey had ever found cohabitation with such infrequent stays. Accordingly, the Appellate Division vacated the findings of the lower court and remanded the case for a plenary hearing to make the final determination.
To learn more about the laws of cohabitation and alimony in New Jersey, I invite your to contact my law firm. Thank you.
In a New Jersey, seasoned divorce attorneys understand that, in addition to alimony and child support, most divorce orders or settlement agreements also contain provisions for maintenance of life insurance by the supporting spouse for the benefit of the supported spouse. The experienced attorneys at my law firm understand that, like all support provisions, New Jersey divorce courts place great importance on the enforcement of life insurance provisions, and take a failure to maintain such an obligation very seriously. In Ashmont v. Ashmont, the Honorable Judge Jones of the Ocean County Family Part court found that ex-husband, Steven Ashmont, failed to abide by the life insurance obligation provision in his property settlement agreement, and order two forms of relief to remedy the failure. Judge Jones ordered: (1) a change of ownership of the current policy; and (2) financial sanctions against Steven.
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.
No. Once a divorce is over, absent a lawyer proving in a New Jersey Family Court a true change of circumstances, a party who voluntarily changes jobs in order to lower their alimony or child support will not be successful. Attorneys understand that these type of motions filed after the divorce is finalized are extremely fact sensitive. However, when the payor of these financial obligations thinks they can “work the system” by such a scheme, the attorneys at our law firm thrive on giving them a rude awakening. This recent case illuminates New Jersey law and how Court’s handle such situations.
As a New Jersey divorce attorney I embrace that when attempting to modify or terminate alimony, your lawyer must provide evidence that the monies of his ex-wife and her new boyfriend were commingled or that his ex was reliant on her paramour (i.e. new girlfriend) for living expenses or even that they shared household expenses.
Last week I discussed how a property settlement agreement may provide for the termination of alimony upon a showing of cohabitation by the spouse receiving alimony. As an experienced alimony attorney I know that it is not always so easy to prove the existence of alimony. Discovery may aid in proving discovery, but a moving party must prove a prima facie case of cohabitation before a court will compel a spouse receiving alimony to provide discovery in a cohabitation issue. There are two standards in evaluating whether the burden of proving a prima facie showing has been met, statutory and case law. The question of which standard applies rests on the timing of the divorce and motion, and what the property settlement states. That is why I advise my clients to sign property settlement agreements that are explicitly clear about standards of review.
In Robitzski v. Robitzski, ex-husband Steven Robitzski appealed a January 9, 2015 order of the Superior Court of New Jersey, Family Part of Gloucester County, that denied his request to compel his ex-wife, Lorraine Robitzski, to provide additional discovery. The requested discovery was related to cohabitation, and could have potentially affected Steven’s obligation to pay Lorraine alimony. The request was denied by the motion judge, because Steven failed to make a prima facie showing of cohabitation. Only a prima facie showing could justify such a full discovery demand, and invasion into Lorraine’s private life. On appeal, the New Jersey Appellate Division agreed with the Family Part’s conclusion that Steven failed to prove a prima facie showing of cohabitation, but stated that if he could provide more evidence to meet his burden he could file the motion again.
When Steven and Lorraine divorced on 2004, they incorporated a property settlement agreement into their judgment of divorce. By the terms of the settlement agreement, Steven would pay Lorraine $ 2,500 every month in alimony, or $ 30,000 a year. The property settlement agreement further stipulated that certain events could potentially terminate the alimony obligation. Specifically, if Steven could prove Lorraine cohabits with another person, the alimony obligation could be modified or even terminated.
The property settlement the parties executed was flawed as it failed to define cohabitation. Moreover, it did not specify if the claim would be evaluated under New Jersey case law and statute standards in place in 2004, the time of the divorce, or those standards governing at the time Steven filed for modification or termination.
Lorraine had admitted to being in a longstanding relationship with another person between the time of the divorce and the appeal at issue. Steven contended that Lorraine and her new partner have an interdependent relationship, where both of them interact and portray themselves as the equivalent of spouses. To support his claim, Steven provided the court with various public Facebook posts by the new partner. These posts were primarily photographs and comments showing numerous social and family activities the new partner engaged in with Lorraine and the children who refer to him as “Pap Thom.”
Lorraine vehemently denied that she and her significant other were in any cohabitation arrangement. She alleged that she only spent about 100 nights of the year with him, and that they both had separate assets and finances. For proof, Lorraine provided copies of her bills and bank statements for 2013 and 2014, which reflected that she paid her bills from her own bank account, not her new partners.
In 2014, the New Jersey State Legislature revised the alimony statute, N.J.S.A. 2A:34-23. As a result, Steven filed a motion to terminate his alimony obligation in November of 2014. He argued that according to the new statute, Lorraine’s new relationship amounted to cohabitation. Conversely, Lorraine opposed the motion, and cross moved for the court to declare that the new 2014 amendments to the alimony statute did not apply to alimony obligation agreed upon in the 2003 property settlement agreement.
A Family Part judge held oral argument, and decided to deny Steven’s motion to terminate alimony on January 9, 2015. According to the motion judge, Steven did not meet his burden to prove a prima facie showing of cohabitation, which would require proof of financial interdependence to warrant a modification to his alimony obligation. “Prima facie” is a Latin term that literally means “on its face.” It means a fact is presumed to be true unless it is disproved. Prima facie proof is based on first impression, and accepted as correct until proved otherwise. For most civil actions, the person who brings forth the claim must present a prima facie case to avoid dismissal. This is because the burden of persuading a judge or jury always rests with the plaintiff.
Steven appealed, and argued that the Family Part reached an erroneous decision. He demanded that the case be remanded back to the Family Part, with instructions that Lorraine provide full discovery that could be related to his claim of cohabitation.
On appeal, the New Jersey Appellate Division noted that the parties disputed what law should apply to the cohabitation issues at hand. Before the 2014 statutory amendments, cohabitation was defined by case law, specifically, the 1999 New Jersey Supreme Court case of Konzelman v. Konzelman. In Konzelman, the Supreme Court stated that cohabitation pertains to the existence of a marital-like relationship that has “stability, permanency, and mutual interdependence.” The 2013 New Jersey Appellate Division case of Reese v. Weis, built upon the principles of Konzelman, and noted that cohabitation is comprised of “an intimate, close and enduring relationship,” that requires more than living together or sex. While living together, sharing household chores and living expenses, and intertwined finances like joint bank accounts might support a claim of cohabitation, these examples “should not be considered in a vacuum.” Simply stated, a social or casual romantic relationship, or sharing a house, while important factors, are not necessarily indicative of cohabitation.
To follow proper procedure, a moving party alleging cohabitation must meet the burden of proving a prima facie case that the spouse receiving alimony is in a marriage-like relationship. Only after this prima facie burden is met, may the parties engage in discovery. The moving party’s prima facie showing of cohabitation generates a rebuttable presumption of changed circumstances. The ex-spouse who receives alimony can then rebut the presumption by providing proof that the need for spousal support is still the same.
The New Jersey Legislature addressed the issue of cohabitation in the 2014 amendments to the alimony statute. Subsection (n) of N.J.S.A 2A:34-23 provides that cohabitation is a “mutually supportive, intimate personal relationship” where both partners have taken on the privileges and duties “commonly associated with marriage . . . but does not necessarily maintain a single common household.” The section further states that in evaluating a claim of cohabitation, the court should consider: intertwined finances, like joint bank accounts; sharing living expenses; a recognition of the relationship by the couple’s family and social circle; length of the relationship, frequency of contact, or if the couple is living together; if household chores are shared; if the spouse receiving alimony has an enforceable promise of support from another person; and any other evidence the court may deem relevant. The section ends by stating that in determining whether alimony should be terminated or suspended, the court cannot declare that cohabitation does not exist solely because the couple does not live together full time.
Steven contended that the new statutory amendments in subsection (n) lessened the burden to prove cohabitation. Lorraine disagreed and contended that the new subsection merely codified the essence of case law. She further argued that even if the amendments did lessen the burden, the Family Part still was correct in finding that subsection (n) does not apply to the mutually agreed to terms of the property settlement agreement that was executed in 2003, over ten years before the 2014 revisions.
The New Jersey Appellate Division stated that at this point in time it did not matter if the court applied the cohabitation standards of Konzelman, or subsection (n) because Steven had failed to present a prima facie case of cohabitation under either standard. Lorraine testified that she and her new partner only spent about 100 nights a year together. This basically amounts to spending weekends together, which is far less than a majority of the year. While not dispositive, this infrequency is an important factor to take into consideration. Furthermore, there was absolutely no proof of joint bank accounts, shared living expenses, or any enforceable promise of support. Nor was there any evidence of shared chores, beside shoveling snow. The New Jersey Appellate Division held that the motion judge was correct in determining that Steven failed to meeting the burden of proving a prima facie showing of cohabitation that would warrant additional discovery, by either the statutory or case law standards. Still, the appellate panel stated that Steven could file another motion in the future to establish a prima facie case if he could find supplemental evidence, such as that the couple spent more than two nights a week together, or that their finances were actually more intertwined than the present evidence suggested. For the time being, however, the New Jersey Appellate Division held that Steven was required to abide by the alimony obligation he agreed to in the property settlement agreement.