Arons & Solomon | April 18, 2018 | Articles
Alimony (aka spousal support “maintenance”) is a legally binding arrangement that requires one spouse to make payments to the other during and after a divorce. The alimony arrangement is determined by many different factors, including: the duration of the marriage, the marital standard of living, the earning capability of both parties, among others.
In New Jersey, spousal support automatically terminates when the recipient enters a new marriage. However, moving on after a divorce isn’t always so simple.
What happens if the alimony recipient enters a serious relationship with someone new, but skips the vows and the shared full-time residence?
This arrangement is called “cohabitation,” and it’s often concealed by the alimony recipient for as long as possible to keep the spousal support payments rolling in. If cohabitation is determined to be occurring, alimony can be suspended, terminated, or modified.
What Constitutes “Cohabitation” in New Jersey?
The State of New Jersey defines cohabitation as an arrangement that “involves 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.” (NJ Rev Stat § 2A:34-23)
According to NJ Rev Stat § 2A:34-23, the courts consider 8 criteria when determining whether or not cohabitation is occurring:
- Intertwined finances such as joint bank accounts and other joint holdings or liabilities
- Sharing living expenses
- Living together, the frequency of contact, and other indicators of a mutually supportive intimate personal relationship
- Recognition of the relationship in the couple’s social and family circle
- Length of the relationship
- Promise of financial support from the new romantic partner
- Sharing household chores
- Any other evidence the court deems relevant
The couple does not have to live together on a full-time basis to be considered “cohabitating.”
Who Determines Alimony Adjustments?
The alimony-paying spouse must file a motion with the courts to request a hearing before a judge. The judge will then examine the preliminary evidence, and determine what criteria weigh the most in that specific case. The judge’s decision is subjective, and not based on any strict formula or set of guidelines.
The Alimony Recipient Will Often ‘Deny, Deny, Deny’
Be prepared for the alimony recipient to deny the cohabitation because he/she doesn’t want the spousal support payments to end. Unfortunately, it is the alimony payer’s responsibility to prove the ex-spouse is cohabitating with someone new, and this can be difficult.
The paying spouse must file an alimony modification petition with the court and submit “prima facie” evidence that demonstrates the appearance of cohabitation. If the court deems this evidence sufficient, it may grant a discovery period to gather more conclusive evidence, including financial records.
Experienced divorce lawyers have relationships with professionals who can help you gather evidence, including:
- Private investigators to monitor social media sites, capture key moments, and establish patterns of cohabitation activity
- Forensic accountants to interpret financial statements during discovery, look for changes in financial habits, and establish patterns of shared financial responsibility
The ‘Alimony Reform Act’ Makes it Easier to Modify Payments
Thanks to the New Jersey Alimony Reform Act of 2014, the recipient no longer must share a residence full-time for the relationship to be considered “cohabitation.” This change greatly alleviates the burden of proof on the paying spouse.
However, the reform legislation does not apply retroactively to existing divorce settlements. It only applies to current divorce cases, and a few existing settlements that failed to address a relevant issue.
Since the reforms are still relatively new, case law interpreting the legislation is still developing. The divorce experts at Arons & Solomon are following the case law closely and adjusting our legal approach to alimony and cohabitation cases as needed.
New Jersey Cohabitation Legal Battles Can Be Avoided
Unlike child support, there is no guiding formula or specific process governing alimony adjustments. This subjectivity can make cohabitation legal battles very contentious.
If you have not finalized your divorce yet, there is an opportunity to avoid future headaches before they even start. Couples can include a cohabitation clause in their divorce settlement that clearly defines “cohabitation” and explicitly outlines what circumstances will trigger an end to alimony payments.
Always Seek Legal Counsel for New Jersey Alimony Adjustments
Alimony is not a suggestion, it’s a legal order. If you attempt to skip alimony payments, you could be charged with contempt of court. In extreme cases, you could face jail time.
If you disagree with your current alimony arrangement, do the responsible thing. Hire legal counsel and file a motion to amend the terms of your arrangement within the system.
Every case is different. The divorce lawyers at Arons & Solomon will help you organize the specific facts of your case and gather the appropriate evidence to prove cohabitation.