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Cohabitation cases are challenging. There is not usually an immediate termination of support obligations upon proof of the cohab­itation.  Instead, once an initial showing is made by the obligor spouse, the burden of proof shifts to the supported oblige spouse to demonstrate that there is no substantial financial benefit justifying a change in sup­port obligations.  This typically results in a period of discovery and a plenary hearing (trial). 

There are two separate lines of case: those where an anti-cohabitation clause has been incorporated into a settlement agreement and those where one has not.

As to the first line of cases, Konzelman v. Konzelman, 158 N.J. 185 (1999) established that anti-cohabitation clauses are enforceable, but not always. Enforceability appears to depend on the language in the agreement and the nature of the post-divorce relationship enjoyed by the recipient.  Provisions that define the nature of the relationship as something less than long-term and stable are likely to be viewed as inappropriately controlling and therefore void as against public policy. Even if the appropriate Konzelman language is present, the nature and extent of the relationship will be carefully explored before termination is imposed.

As to the second line of cases, the following lessons bear repeating:

1. “Cohabitation” is a term of art.  Payors whose former spouses engage in one-night stands have to be told not to waste their money on a doomed application.

2. Cohabitation is best established via long term surveillance conducted by a professional.  Because this can be a significant expense, thereafter exacerbated by the mind-numbing expense of litigation, clients paying $250 per month should be made to understand the concept of a cost/benefit analysis.

3. Once cohabitation is established, the burden of proof shifts to the recipient to prove he/she is not being supported by the cohabitant nor is he/she supporting the cohabitant.

4. Because of point 3, alimony recipients who are contemplating cohabiting yet hoping to retain their full alimony award, need to understand the following:

a. Maintaining joint bank accounts or joint assets of any kind should be discouraged;
b. Overhead expenses should be shared equally and other expenses should be allocated based on consumption to the extent reasonably possible;
c. Courts are going to consider the extent to which the cohabitant affords the payee the opportunity to enhance his/her lifestyle. A payee should not be surprised by a reduction in alimony, even if he/she follows rules a. and b., if he/she is able to maintain a standard of living significantly higher than that enjoyed during the marriage; and
d. It’s not “all about the money.” Especially when considering the possibility of terminating alimony, courts are going to inquire into the nature and extent of the relationship.  With respect to the extent, courts are going to compare the duration of the cohabitating relationship to that of the underlying marriage.  

In February 2014, Gebhardt & Kiefer attorneys William W. Goodwin, Jr. and Diana N. Fredericks co-authored a detailed article on cohabitation that was published in "New Jersey Family Lawyer" and can be read in its entirety here.  Following is an excerpt:

Decisional law is an evolutionary process, and cases addressing post-judgment cohabitation’s impact on alimony obligations are no exception. The purpose of this article is to assist practitioners in deciphering this area of the law as it has evolved over the past 38 years, especially as the cases can appear conflicting at times. This review of cohabitation is especially timely in light of the Appellate Division’s May 7, 2013, decision in Reese v. Weis, which addresses two issues prior case law has not: 1) What constitutes “an economic benefit”; and 2) when does such a benefit warrant termination—rather than modification—of alimony. The goal of this article is to assist practitioners in drafting effective settlement agreements and guiding clients where post-divorce cohabitation is contemplated by the alimony recipient (or suspected by the payor).

Since Mr. Goodwin and Ms. Fredericks co-authored an article for the New Jersey Family Lawyer, as referenced above, this legal issue continued to evolve at both the legislative and judicial levels.

In September 2014, the Governor signed an amendment to the New Jersey alimony statute. While there were several revisions to the law, one addressed the impact of cohabitation and simply declared the right of a Judge to terminate or suspend alimony upon cohabitation. Cohabitation is also defined, or at least its "symptoms" are described, within the body of the statute. Notably, the statute specifically provides its terms are not to be retroactively applied. In other words, agreements between parties divorced prior to September 2014 are governed by prior law, which is detailed in the aforementioned article.

There also remains a great debate as to whether Judges have the ability to modify alimony if cohabitation is found to exist.  In other words, because the statute specifically states terminate or suspend, some lawyers and judges take the position that the legislature did not intend for modification to be an option.  Others take the positon that the Courts have this judicial discretion and that the legislative history surrounding the 2014 amendments to the alimony statute never intended to preclude modify by omitting it from the text.  The outcome of this remains to be seen and we will continue to provide updates as the case law evolves. 

Given the complexities involved with cohabitation, we advise you to contact one of Gebhardt & Kiefer’s experienced family law attorneys at 908-735-5161.  We handle cohabitation and family law issues throughout New Jersey.