By Jeralyn Lawrence, AAML NJ Chapter President
A June 2021 ruling by the Appellate Division has clarified our law on the amount of evidence required to obtain discovery related to the cohabitation of a supported spouse in alimony cases.
Alimony in New Jersey may be terminated when the supported spouse remarries or cohabitates with another partner. In 2014, the New Jersey legislature created statutory amendments to the alimony statute (N.J.S.A. 2A:32-23n), laying out specific factors that may be evaluated to determine cohabitation. While it has long been understood that remarriage terminates alimony obligations, some recipients instead chose to live in marriage-like relationships, including having intertwined finances, in order to preserve their alimony. This legislative reform aimed to close that loophole, but it has been difficult to define exactly how a payor may document their argument.
The Appellate Division ruling in Temple v. Temple (A-0293-20 (N.J. Super. Jun. 17, 2021)), decided on June 17, 2021, lays out specific guidance about how a payor may make an argument for cohabitation and seek a plenary hearing for termination or alteration of their alimony obligation. It also may make it easier for practitioners to obtain the evidence they need to make this showing of cohabitation. The Temple decision was originally issued as an unpublished ruling but has since been published and as such is binding authority.
Landau v. Landau
In Landau v. Landau (461 N.J. Super. 107, 218 A.3d 823 (N.J. Super. 2019)), decided in 2019, the Appellate Division addressed the effect of these amendments on a party seeking to prove cohabitation in order to terminate their obligations to pay alimony.
Specifically, the Landau decision confirmed that applicants seeking to terminate alimony obligations must establish a prima facie case for cohabitation before obtaining discovery on the issues. However, the court did not address how much evidence was sufficient for a prima facie case for cohabitation nor did it address the merits of any particular claims for cohabitation.
In the Landau case, the ex-husband argued that the ex-wife and her boyfriend traveled and attended social events together and that they slept over at each other's separate homes. While the court did not address the merits of these claims, it ordered discovery to be conducted, never ruling, however, that a prima facie case had been made.
The Landau court placed restrictions on the use of discovery to compel evidence relating to the private relationships of a supported spouse, upholding the privacy rights of the supported spouse. It upheld existing case law requiring a prima facie showing of cohabitation to order discovery rather than allowing for discovery to move forward to make that prima facie showing upon the filing of a petition for suspension or termination of alimony.
As the matter of what constitutes such a prima facie case was left undefined, practitioners were left without clear guidance on what was needed to fulfill the requirements of the statute.
Temple v. Temple
Temple v. Temple provides much greater clarity, noting the limitations of the Landau decision in providing an analysis of cohabitation and the need to balance the interests of both parties in arriving at a decision.
The parties in the Temple case were married in 1986 and divorced in 2004. Per their divorce settlement, the husband was required to pay $5,200 monthly in permanent alimony. However, in July 2020, the husband sought to terminate his alimony obligation on the basis that his ex-wife was cohabitating or remarried to another man. He further asserted that she had been in a relationship with this other party for at least 14 years. Based on the divorce agreement between the parties, cohabitation was a reason to modify or terminate the ex-husband's alimony obligations.
The trial court misapplied the Landau decision and held that the application made by the husband failed to make a prima facie showing of cohabitation. While the ex-husband provided a range of evidence obtained by a private investigator showing that the ex-wife had lived with the other person for some time, that the other person had called the ex-wife his "wife" on social media, and other indications of a shared lifestyle beyond that of a dating relationship, the trial court stated that the husband did not address all six of the factors specifically elaborated for cohabitation in the statute.
Statutory Definition of Cohabitation
The elements defined by N.J.S.A. 2A:34-23(n) to indicate cohabitation are as follows:
- Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
- Sharing or joint responsibility for living expenses;
- Recognition of the relationship in the couple's social and family circle;
- Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;
- Sharing household chores;
- 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
- All other relevant evidence.
As noted by the Temple court, it is difficult to make a clear prima facie case for either points 1 or 2 without discovery, as people are generally private about their finances and financial planning. They do not make this information available publicly nor to their former spouses with whom they have been in litigation.
While the trial court implied that a showing of all six specific factors was necessary to make the prima facie case required for discovery, the Appellate Division indicated that such would present a nearly impossible barrier, making such cases "as rare as a unicorn." An applicant is not mandated to make a prima facie case of cohabitation for all six statutory factors before being granted discovery.
Approach Akin to Summary Judgment
The Temple court likened the issue to that of a summary judgment motion:"We cannot emphasize enough that judges must be cognizant that most information relevant to cohabitation is not readily available to movants. These motions are akin to summary judgment motions filed prior to the completion of discovery ... Although it is true family judges should be careful not to permit a fishing expedition into a supported spouse's private affairs on a weak claim, judges must also remain aware that movants ... do not have access to much of the information relevant to a dispute about cohabitation. In civil matters, courts often quite correctly deny or continue summary judgment motions until discovery is completed ... Contrary to that well-established approach, Jeffrey was put to the burden of demonstrating the factual sufficiency of his claim when most of the relevant information remains in Cynthia's possession."
Given that issues of material fact were presented by the payor and rebutted only by a statement denying those allegations by the supported spouse, the payor was entitled to an assumption of truth in order to determine whether or not discovery could be ordered in the case.
The trial court placed an undue amount of weight on the certification of Ms. Temple as opposed to that of Mr. Temple, even though the statements in the certification were unsupported by evidence. The certifications of both parties indicated the existence of a genuine dispute about the material facts in question that went beyond a mere fishing expedition in the private life of the supported spouse. In fact, many of the references to the relationship between the supported spouse and the other party were scrubbed from social media following them learning of the ex-husband's investigation.
Seventh Factor of Cohabitation
In the Temple decision, the court emphasized the importance of the seventh factor defined by the Legislature in determining whether a sufficient prima facie case was made out to order discovery to proceed. That is, "all other relevant evidence."
A dating relationship is not equivalent to cohabitation, and the financial factors are important in proving cohabitation sufficient to suspend, modify or terminate an alimony obligation, which is primarily a financial matter. However, in order to reach the point of a plenary hearing, it may be impossible for the payor to establish any sort of prima facie case on these matters without discovery. As the court noted, the six enumerated factors do not constitute "the alpha and omega of what ultimately persuade a court that a supported spouse is cohabiting."
Previous cases have indicated that discovery was not available to assist in making that case, while the Temple ruling establishes that a movant must show simply that the supported spouse and another person are in a mutually supportive, intimate personal relationship that indicates the undertaking of duties and privileges commonly associated with marriage, especially when taken together and when the statements presented by the payor are taken for the purposes of assessment as true. While social media posts and the like may not be sufficiently probative to actually terminate an alimony obligation, they can be considered by the court in determining whether discovery may be ordered.
It should be noted that the strength of the arguments presented in the Temple case vary significantly from the underlying facts in the Landau case and in several other Appellate Division cases since that time which have denied discovery related to a claim of cohabitation.
In the Temple case, Mr. Temple argued that Ms. Temple and the other party had shared the same home on multiple occasions, had been in a relationship for over 14 years, publicly referred to themselves as married, traveled together extensively and publicly and had spent significant time on vacation together. While the payor's presentation was not sufficient to make the prima facie case of cohabitation necessary for a plenary hearing, it was sufficient to receive discovery that could enable him to do so if the appropriate evidence regarding living circumstances and finances was brought forward in the discovery process.
Previous cases may be differentiated from the Temple case by the length of the cohabiting relationship alleged and the multiple public declaration by the other party that the supported spouse was his "wife," as well as other factors. While Mr. Temple may have presented a strong enough prima facie case to receive discovery to compel the financial information needed to prove cohabitation for the purposes of terminating alimony, the same is not necessarily true for movants with underlying claims that are weaker.
The Appellate Division reversed on the discovery matter and remanded the case for further proceedings at the trial court level.
Key Takeaways for Practitioners
The significant Temple decision may make it possible for more payors of alimony to make successful efforts to compel discovery in cohabitation cases. Should that evidence establish a clear claim of cohabitation, they may then move forward to a plenary hearing to prove their case and reduce, suspend or terminate their alimony obligations. It provides much greater clarity about the amount of evidence and types of claims necessary, when taken in totality, to move forward to discovery. It should also help to correct the misapplication of the Landau decision in cases where discovery is wrongly denied to movants, removing a seemingly impossible burden in many cases.
In all cases, the strength of a cohabitation claim depends on the underlying facts and legal argumentation, as well as proper timing of the filing. Cohabitation claims that are brought too quickly following the divorce or the inception of a new relationship may be far more likely to fail than ones that can demonstrate a lasting relationship that can be compared to marriage. Cohabitation inquiries are particularly fact-sensitive, and the unique circumstances of each situation may lead to different outcomes as the factors set out in statute are weighed.
