Skip to Content

Cohabitation in 2024

Apr 4, 2024 | Written by: Diana N. Fredericks, Esq. |

Cohabitation can have a wide range of meanings, and therefore, the language used in your Marital Settlement Agreements (MSA) to describe or define cohabitation can be incredibly important.  If your agreement is silent on the issue, that does not prevent a court from reviewing the issue and relying upon recently updated cases and the statute

Since 2021, there have been two major updates on the topic of cohabitation in New Jersey and its effect on alimony.  These cases, Cardali and Temple, were previously addressed in blog posts by our attorneys.  And in the April 2024 unpublished decision of Poller, the NJ Appellate Division addressed cohabitation under these new cases. 

In that case, the MSA provided that Gary was required to pay Susana $200,000 per year in alimony for five years.  The MSA further provided "[i]f [Susana] undertakes cohabitation with another person in a relationship which is tantamount to marriage, [Gary] may make an application to terminate or suspend alimony, consistent with the New Jersey statute and case  law.  Cohabitation shall be defined by New Jersey law at that time." 

Gary filed a motion to terminate alimony or, in the alternative, sought discovery on the issue; he also moved for Susana to pay his attorney's fees.  Susana opposed his motion and cross-moved for Gary to pay her attorney's fees. The judge determined Gary failed to establish Susana's cohabitation and failed to make a prima facie showing of cohabitation sufficient to warrant discovery.  In addition, she found that neither party was responsible for paying the other's attorney's fees.

In addressing the issue of cohabitation, the judge noted Susana had a "dating relationship—a boyfriend."  Considering the facts under N.J.S.A. 2A:34-23(n), the judge concluded the dating relationship fell short of cohabitation because Susana and her boyfriend were "not relying on each other as married people."

She found:  (1) they had no joint bank account; (2) their monetary transfers were "de minimis"; (3) there was no evidence of their sharing payment of bills; (4) they enjoyed no vacations together; (5) they did not spend Susana's birthday together; (6) there was no evidence of shared overnights; (7) there was no evidence of Susana being in the boyfriend's apartment; (8) there was no financial reliance between them; (9) the boyfriend's clearing of snow, one time, at her home did not amount to him participating in household chores; (10) the boyfriend was not taking care of Susana's property, her home or her children; (11) Susana and her boyfriend did not comingle funds; and (12) their relationship ended. Therefore, the judge denied Gary's motion, finding his proofs of Susana's dating relationship fell short of a prima facie showing of cohabitation.

Gary appealed and the Appellate Division ultimately agreed with the trial judge that Gary failed to establish a prima facie case that Susana was cohabitating with her boyfriend.  As the judge noted, Susana is permitted to have a dating relationship.  Gary failed to establish prima facie that Susana's dating relationship rose to the level of "a mutually supportive, intimate personal relationship in which [she and her boyfriend] ha[d] undertaken duties and privileges that are commonly associated with marriage" as required by N.J.S.A. 2A:34-23(n).

Although unpublished, this recent decision is helpful.  Gary questioned the ruling, asking how he could possibly ever meet his burden of providing financial intertwinement between his former spouse and her boyfriend, further alleging he was entitled to discovery to address that exact question.  Both courts disagreed and found that Gary’s initial application did not rise to the level necessary (prima facie showing) to warrant a discovery and a hearing that Gary sought.  This case seemingly leads us back to wondering what is necessary to make the initial showing to give rise to discovery and a hearing, which we believed had been cured by the Cardali case. 

In addressing cohabitation, the courts are required to consider the following:  (1) Intertwined finances such as joint bank accounts 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 indicia of a 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 within the meaning of subsection h. of [N.J.S.A.] 25:1-5; and (7) all other relevant evidence.

The Appellate Division held in Temple that, for a prima facie showing, “[i]t is enough that the movant present evidence from which a trier of fact could conclude the supported spouse and another are in ‘a mutually supportive, intimate personal relationship’ in which they have ‘undertaken duties and privileges that are commonly associated with marriage or civil union.’” Id. at 371 (quoting N.J.S.A. 2A:34-23(n)).

As you can see, cohabitation cases can be quite complex and are extremely fact sensitive.  It is critical to have an experienced attorney advocating for your interests in these matters. 

Diana Fredericks, Esq.


Diana N. Fredericks, Esq., devotes her practice solely to family law matters.  She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters from 2015 through 2022, to the NJ Super Lawyers list in 2023 and 2024, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015.  Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.

If you have a suggestion for a future blog topic, please feel free to submit it via the Contact Us form.

Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.