What Do I Need To Prove Cohabitation To Stop Alimony Payments?
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.