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:

  1. the death of the husband
  2. the death of the wife
  3. 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)
  4. the husband’s retirement on or after age 65
  5. 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.