The basic purpose of alimony is the continuation of the standard of living enjoyed by the parties prior to their separation. Heinl v. Heinl. 287 N.J. Super. 337 (1996);  Innes v. Innes, 117 N.J. 496, 503, 569 A.2d 770 (1990) (citing Mahoney v. Mahoney, 91 N.J. 488, 501-02, 453 A.2d 527 (1982)). The supporting spouse's obligation is set at a level that will maintain that standard. Id. at 503, 453 A.2d 527 (citing Lepis v. Lepis, 83 N.J. 139, 150, 416 A.2d 45 (1980)).

Oftentimes, an ex-spouse will co-habit with a new boyfriend or girlfriend after the divorce is finalized. If this happens, the spouse who pays alimony may have a case for cohabitation and may be able to cancel or reduce the current alimony payments. 

That said, even if you're still married, you can still prove cohabitation in a legal forum. This is crucial, because if a spouse cohabits with a paramour prior to a Final Judgment of divorce, difficulties often arise in ascertaining what the status quo standard of living should be for purposes of alimony, such that spousal support may be cancelled or reduced, as a matter of public policy. Rose v. Csapo, 359 N.J. Super 53 (2002)

Generally, Cohabitation has been defined as a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union, but does not necessarily maintain a single common household. Under New Jersey law a payor must establish a basic prima facie case in order to go forward. Once that basic prima facie case is made, there’s a rebuttable presumption of cohabitation and the burden of proof switches to the payee who must refute cohabitation and the receipt of an economic or material benefit. Lepis v. Lepis, 83 N.J. 139, 157 (1980); Reese v. Weis, 430 N.J. Super. 552, 570 (App. Div. 2013); Ozlins v. Ozlins, 308 N.J. Super. 243, 245 (App. Div. 1998). This prima facie burden of proof can be met by simple, basic facts.

As of 2014, New Jersey has had a new, broad definition of alimony pursuant to N.J.S.A. 2A:34-23(n). The new law calls for the suspension or termination of spousal support when the dependent spouse cohabits with another person. Here, a court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis. When assessing whether cohabitation is occurring under this statute, courts look at the following factors:

  1. Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
  2. Sharing or having 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 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 N.J.S.A. 25:1-5h.
  7. Any other relevant evidence.

Courts often handle cohabitation matters differently, depending on the procedural stance of your case.

For example, if you are in the midst of divorce litigation, and cannot resolve your matter by way of MESP or any other form of mediation or negotiation, the courts will generally try to resolve the cohabitation issue at trial. Here, the burden of proof is on the party alleging cohabitation. That said, all he needs to do is make a "prima facie" case. This means he just needs to make a basic case, and present a few basic bits of evidence pertaining to the factors above. If the judge finds that a prima facie case was made, then what happens is a "rebuttable presumption of cohabitation" is thus established. What this means is that the burden of proof then switches to the party that says there is no cohabitation. Here, said party has the responsibility to introduce evidence and present witnesses who can disprove the presumption of cohabitation. This is not as easy as it sounds, especially if the other party presented a large amount of evidence showing cohabitation. If one cannot present enough evidence disproving cohabitation, then the court will find that said cohabitation exists. Normally, this entire process will take place within the confines of the trial and the judge will hear cohabitation evidence and testimony along with testimony about all other relevant subjects, such as child support, equitable distribution, and your cause of action as well.

On the other hand, if you are already divorced, pay alimony and believe your ex-spouse is cohabiting, all you need to do is file a motion to modify the prior order. In such a case, you will then have a cohabitation hearing which focuses exclusively upon this issue and in accordance with the above-mentioned burden-switching procedures mentioned above.

The Law Office of Robert J. Wittmann has handled countless divorce cases and has not only taken these cases to trial (and won) , but has also successfully litigated the issue of cohabitation, thus cancelling our client's alimony obligation to a soon-to-be ex-spouse. If you are in the middle of a divorce, or have already been divorced and believe that your spouse or ex-spouse is cohabiting with a boyfriend/girlfriend, then call the Law Office of Robert J. Wittmann for a free consultation.

Call us for quality, compassionate, and individualized representation: 856-873-3730



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