By Jeralyn Lawrence, AAML NJ Chapter President
Alimony allows former spouses who were financially dependent on their partners during their marriage to meet their own needs. It takes into account the economic entanglement that the two people had. Therefore, the resources of the former spouses, the marital standard of living, and the age and health of both parties, along with the duration of the marriage, have long been substantial factors in determining an alimony award.
When circumstances change, an alimony order may also change. This means if one party's income changes significantly, it may be a reason to reevaluate or terminate the obligation. In New Jersey, alimony may also be terminated when the recipient remarries or cohabitates with another partner.
In the past, while it was clear that remarriage terminates an obligation to pay alimony, some recipients have chosen to live in marital-like situations with combined finances but without a legal marriage in order to preserve their alimony. Therefore, the question of when cohabitation similar to marriage emerges has become a subject of disputes between former spouses when alimony has been ordered.
In 2014, an amendment to the state's alimony statute (N.J.S.A. 2A:32-23n) laid out specific factors to be considered in order to determine when cohabitation is present sufficient to cause the termination of alimony. One unpublished 2020 case considered by the Appellate Division, Wajda v. Wajda, lays out some guidance about how the Appellate Division views what is needed for a movant to present a prima facie case of cohabitation sufficient to receive discovery or move forward to a plenary hearing.
Ending Alimony for Cohabitation in New Jersey
Prior to the 2014 legislative reform, several cases established principles on which alimony could be ended when the recipient became seriously involved with another partner, even without a remarriage. The 2014 reform aimed to codify and clarify the factors that could lead to a determination of cohabitation. Cohabitation under the law does not necessarily require the couple to reside in one household, but it is defined as an "intimate, mutually supportive personal relationship wherein a couple shares duties and privileges typically associated with marriage or a civil union."
Overall, courts reviewing these types of petitions focus on the financial aspects of cohabitation, which may be considered to differentiate cohabitation from a dating relationship. A dating relationship is not a sufficient reason to terminate alimony, while the "marriage-like" relationship of cohabitation is sufficient. The elements laid out in the statute that point toward cohabitation are the following:
•Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
•Shared 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.
In order to move a petition for termination forward to discovery, a movant must make out a prima facie case for cohabitation. It is not necessary to show that all of the above factors are present in order to make a case for cohabitation, and the definition includes both emotional elements like recognition of the relationship, living together, and sharing lives as well as primarily financial elements such as joint liabilities and joint budgeting. However, the financial elements may provide the clearest demonstration of a difference between cohabitation and a dating relationship, both of which are often public and supportive.
At the same time, these are the most difficult elements to prove without some access to discovery. People are generally not in the habit of sharing their personal financial decisions, so while a movant may be able to show photos of a couple traveling together, it may be very difficult to present any evidence of intertwined finances without access to discovery.
It should be noted here that a prima facie case does not necessarily require extensive evidence. A prima facie case is one that is "sufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it may later be proved to be untrue." (Black's Law Dictionary). It is therefore unnecessary for a movant to prove cohabitation in fact in order to make out a prima facie case.
Wajda v. Wajda
In 2019, the Appellate Division ruled in Landau v. Landau (461 N.J. Super. 107, 218 A.3d 823 (N.J. Super. 2019)) that applicants seeking a termination of their alimony obligations must establish a prima facie case for cohabitation in order to proceed with discovery. However, the court did not specify what type of evidence or how much was sufficient to make out such a case, nor did it evaluate any presented evidence of cohabitation on the merits.
The Landau court reversed a trial court decision granting discovery to an ex-husband and alimony payor who argued that his ex-wife and her new boyfriend traveled together and enjoyed a shared social life, noting that the two maintained separate homes but often slept at each other's home. The Appellate Division reversed the discovery order on the basis of the privacy rights of the supported spouse in her private relationships because the court did not state that a prima facie case was made While the court indicated that discovery could not be used to make a prima facie case where none existed, it did not spell out which elements movants needed to meet in order to make out such a case.
Wajda v. Wajda, decided approximately 7 months later on April 23, 2020, was an unreported and therefore non-precedential decision of the Appellate Division. Here, the Appellate Division reversed a trial court judge who had denied discovery and found that the movant did not make a prima facie showing of cohabitation. In the Wajda case, the movant presented a certification stating that his former wife's new boyfriend often stayed in the ex-wife's home, alleging that they had established cohabitation.
The payor paid $425 in alimony weekly to his ex-wife, and he presented a report by a private investigator detailing the above assertions. In response, the ex-wife said that her boyfriend lived in New York and only stayed with her and that they did not share joint finances. As the court noted, "The report also indicated that A.S. remained in the home when defendant was not present and when the parties' daughter was there, kept his car there, often drove defendant's car, did some household chores, and kept his two dogs there."
The Appellate Division did not rule on the merits of the underlying cohabitation claim. However, it overturned the trial court, affirming that the movant had made a sufficient showing to warrant further discovery and thus a prima facie case. The Appellate Division recognized that it would be nearly impossible to address the economic factors of cohabitation without moving forward to discovery, ordering the case to be returned to the trial level for further proceedings. "We recognize the difficulties of developing proofs of things such as intertwined finances, joint bank accounts, shared living expenses and household chores, and recognition of the relationship in the couple's social and family circle, without either invading a former spouse's privacy or taking some discovery on the issue... The question is whether plaintiff made a sufficient showing to warrant further discovery. We think he did." The court, however, did not explicitly address the issue of what was necessary for a movant to make out a prima facie case.
After Wajda: The Temple Decision
The Appellate Division's later decision in Temple v. Temple (A-0293-20 (N.J. Super. Jun. 17, 2021)) provided much greater clarity to movants seeking to terminate an alimony obligation on the basis of cohabitation and move forward to a plenary hearing on their case. The decision in Temple, which reiterates many of the principles expressed in the Wajda decision, was originally issued as unpublished but was later published, becoming binding authority in New Jersey alimony cases.
In the Temple case, the Appellate Division once again dealt with a situation where a trial court had erroneously denied further discovery to a movant who had laid out a claim to terminate alimony on the basis of cohabitation. The payor alleged that his ex-wife had been in a relationship with the same person for 14 years, during which her new partner had referred to her as his wife, that the couple lived together, and that they shared a common lifestyle. However, the trial court denied the ex-husband's petition for further discovery because his petition did not address all six of the enumerated factors in the statutory definition of cohabitation.
The Temple court noted, as the Wajda court had prior, that it was extraordinarily difficult for movants to make out any claim regarding the financial elements of cohabitation without a successful motion for discovery. Requiring such at the motion level would make a successful claim "as rare as a unicorn," the Appellate Division noted in their decision. The court held that the trial court was incorrect in requiring movants to make a showing of all six factors for cohabitation before being granted discovery on the basis of a prima facie case.
Going further, the Appellate Division likened the consideration of such a motion to that given to a summary judgment motion, in which the court determines whether issues of material fact are being presented. Given that such issues were clearly at hand, the movant should have received an assumption of truth to the extent of allowing discovery to move forward in the case. Of course, the facts in the Temple case may be stronger than those in the Wajda case or other cohabitation claims, but the published ruling lays out clear guidelines that can help movants make out such a claim in a petition to terminate alimony obligations.
Lessons for PractitionersThe Wajda case was a precursor to the Temple decision. Both indicate thought from the Appellate Division about how payors of alimony may access the necessary information to make out a claim of cohabitation sufficient to reach discovery or, after that, a plenary hearing for termination. They provide additional clarity to a matter that has long been murky for many practitioners and may correct the tendency on the part of some trial courts to quickly dispose of cohabitation claims.
Of course, the strength of any claim for termination of alimony relies most on the facts of the specific case as well as the arguments that can be marshalled to support the claim. Timeliness can be another significant factor, although the Wajda case points to a much shorter relationship of months, rather than the Temple relationship of over a decade, as a potential example of cohabitation. Practitioners should keep a fact-sensitive approach at hand, using the approach laid out in Temple to point to sufficient evidence to move forward to obtain further financial or other relevant details.