By: Janine Danks Fox
On September 10, 2014, N.J.S.A. 2A:34-23 was amended to reformthe alimony statute. Since thepassage of the statute, there has been considerable debate regarding the application of the statute when a supporting spouse is seeking to alter his/her alimony obligation on the basis of cohabitation. N.J.S.A. 2A:34-23(n) provides: Alimony may be suspended or terminated if the payee cohabits with another person. Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.
When assessing whether cohabitation is occurring, the court shall consider the following: (1) Intertwined finances
such as joint bank account and other joint holdings or liabilities, (2) Sharing or joint responsibility for living expenses; (3) Recognition of the relationship in the couple’s social and family circle; (4) Living together, the frequency of contact, the duration of the relationship, and other indicators of mutually supportive intimate personal relationship; (5) Sharing household chores; (6) Whether the recipient of alimony has received an enforceable promise of support from another person; (7) and all other relevant evidence.
Following the passage of the statutory amendment, the Appellate Division confirmed that the statute does not apply to cases in which the parties contractually agree to other language in their Agreement or Judgment. Moreover, unless a statute specifically delineates a retroactive effect, then the statute can only be applied prospectively.
The factors set forth in the statute largely memorialized criteria adopted by New Jersey Courts in prior decisional law. There are two distinctions, however, in which the strict reading of the statute departs from prior decisional law. First, the statute provides that alimony may be suspended or terminated if cohabitation is established. While the statute no longer includes specific language as to a modification of alimony, there is considerable disagreement about whether modification under the statute is an available remedy. Some argue that the lack of the word modification does not preclude such relief as it is inherent in the legislative intent and prior decisional law that modification is a remedy to address a spouse’s ongoing economic dependency and need for alimony. Others opine
that a strict reading of the statute precludes modification. Second, prior to the enactment of the reform statute, the moving party had the burden of demonstrating that the parties were living together in a common residence. With the passage of the alimony reform statute, the statute no longer requires a common residence between the alimony recipient and his or her partner.
While the amended statute no longer requires a common residence, unpublished court opinions make clear that there must be credible documentary evidence establishing consistent and dedicated overnights. The New Jersey Appellate Court has underscored that the frequency of overnights is a key component in any cohabitation analysis, noting that 2 to 3 overnights per week is arguably more consistent with a romantic dating relationship than a relationship tantamount to marriage. Similarly, another decision opined that evidence of 100 to 110 overnights in a year was insufficient to meet the burden of establishing cohabitation.
The New Jersey Supreme Court in Quinn v. Quinn also cautioned against Courts qualifying dating relationships as cohabitation. Specifically, the Supreme Court stated:
We do not today suggest that a romantic relationship between an alimony recipient and another, characterized by regular meetings, participation in mutually appreciated activities, and some overnight stays in the home of one or the other, rises to the level of cohabitation. We agree that this level of control over a former spouse would be unwarranted…
With the passage of the statute, Court filings seeking to modify, terminate or suspend alimony on the basis of cohabitation are on the rise. The Court must first be guided by the specific terms of the parties’ Agreement or Judgment when reviewing a claim of cohabitation to determine whether prior decisional law or the amended statute applies. If the Agreement or Judgment is silent on the subject, then presuming the alleged cohabitation occurred after the passage of the statute on September 10, 2014, the statute applies.
There are many challenges that the bench and bar face when evaluating a cohabitation claim; namely that many of the factors are subjective in nature. For example, when does spending holidays and vacationing with a partner, as dating couples often do, rise to the level of cohabitation? If the parties are not living together, what number of overnights is sufficient to terminate or suspend alimony? What constitutes a lasting and enduring relationship when weighed against the length of the former marriage? If there is a showing of some factors, but not all and the supported spouse continues to demonstrate an economic need, is it equitable to eliminate or suspend alimony? Given the scant decisional law since the statute was passed, judges and attorneys have vastly differing views as to what constitutes cohabitation.
While the above cases provide some guidance, the law is still relatively new and will continue to develop over time as New Jersey Courts issue opinions on the subject. The passage of the statute demonstrates a trend toward opening the door to alter alimony obligations presuming that the moving party is able to provide credible evidence of the factors listed within the statute. If you have questions regarding a cohabitation claim, it is in your interest to consult with an attorney to determine your rights based upon your own specific circumstances.
Janine Danks Fox is Partner and family law attorney. To contact Janine please call (609) 275-0400 or email her at jfox@szaferman.com.
