Cohabitation
The New Jersey legislature has defined “Cohabitation” as being a “mutually supportive, intimate personal relationshipin which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union.”
This does not mean that the couple needs to be living together full-time for a court to find that the relationship is “cohabitation”. The courts will consider the following factors when determining whether or not a couple is cohabitating:
- If the couple shares finances like joint bank accounts or shared holdings and/or liabilities
- If the couple share responsibilities for living expenses
- Recognition of the relationship by family and social circles
- Whether or not the couple is living together, and if not, the frequency of contact, and the duration of the relationship in question
- If the couple shares household chores
- Any other evidence the court deems relevant
These factors were established through a variety of previous cases, and have now been grouped together and defined in New Jersey’s alimony statute N.J.S.A. 2A:34-23(n).
HOW CAN COHABITATION AFFECT MY ALIMONY SETTLEMENT?
If a party who is paying alimony to a former spouse believes that that spouse is co-habitating with another adult, the supporting party may go to Court to attempt to have their alimony obligation terminated. In the case of where the supported spouse actually remarries, proving that he or she now has another source of financial support, and thus may no longer require alimony, is relatively straightforward. A well-prepared Marital Settlement Agreement will specify that re-marriage is a terminating event for alimony, as well as co-habitation.
Proving that cohabitation exists can difficult. For example, at the outset, it may be hard to prove, whether or not your former spouse is sharing a bank account with their new partner. This is where the legal idea of the “prima facie showing” comes into play. “Prima facie” basically means that there is suggestive evidence for something, at first appearance. In the case of cohabitation, as long as you can show the Court, in your initial moving papers, some evidence which suggests your former spouse may be cohabitating with another adult,(remember what the definition is—not just living together) the court will move your case into the “discovery phase”. Discovery means that the payor of the alimony, the spouse who brought the case to Court, can compel the receiving former spouse to provide financial documents, such as bank records and living expense documents. The payor spouse can gather information by legal interviews known as depositions. This is called the “Discovery Process” meaning it is how the attorney and client gather information necessary to return to Court with the actual concrete proof that the receiving spouse is cohabitating within the meaning of the definition.
If you are receiving alimony payments, and are in a romantic relationship with another adult, you should take a serious look at the factors outlined above in order to gain a better understanding of whether or not your romantic relationship will affect your entitlement to alimony.
If you are paying alimony to a former spouse, and have a reasonable belief that he or she is co-habitating, you should take the time to consult with an experienced Family Law attorney. There are resources available to you early on, even before you file your case, to try to make a prima facie showing of co-habitation. Routinely in these cases, the payor spouse hires a private investigator to surveil the lifestyle of the recipient spouse and his/her suspected co-habitant. Private investigators can also locate assets to determine if any are shared by the recipient spouse and the co-habitant. Sometimes, nothing concrete on paper if discernable by an investigator. At that point, the trial skill of the attorney representing either spouse becomes critical. The Judge’s decision sometimes rises and falls on the information revealed on the witness stand, at trial.