Jeralyn L. Lawrence, a Member of the Bridgewater-based law firm Norris McLaughlin & Marcus, P.A., spoke today at the Fall CLEfest, sponsored by the New Jersey Institute for Continuing Legal Education. Here are a few hot tips, Jeralyn discussed at this year’s program, “Electronic and Social Media in Family Litigation: What’s Useful? What’s Beyond the Pale?”
A. Cohabitation Defined
Prior to the enactment of the New Jersey Alimony Reform Act of 2014, proving cohabitation was an elusive and difficult burden for the payor spouse to overcome. Notwithstanding the sweeping reform, these statutory provisions do not apply to post-judgment orders finalized before enactment of the amended statute, and litigants with pre-amendment orders or marital agreements continue to confront these issues. Spangenberg v. Kolakowski, 442 N.J. Super. 529, 531, 125 A.3d 739, 740 (App. Div. 2015). The Court in Konzelman v. Konzelman defined cohabitation as “an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These can include, but are not limited to, living together, intertwined finances . . ., sharing living expenses and household chores, and recognition of the relationship in the couple’s social and family circle.” 158 N.J. 185, 202, 729 A.2d 7, 10 (1999).
To constitute cohabitation under Konzelman, the relationship “must be shown to be serious and lasting.” Id. at 203. Under no circumstances, however, was a “mere romantic, casual or social relationship” considered sufficient to justify termination of alimony under New Jersey law. Id.at 202. The criteria set forth in Konzelman effectively created a formidable barrier for a payor spouse to overcome in situations where the recipient spouse was, for all intents and purposes, living in a relationship tantamount to marriage with another individual while continuing to receive alimony.
However, to prove cohabitation under New Jersey’s new alimony reform, a payor spouse need not prove that the recipient spouse is residing with another individual. In clarifying the definition of cohabitation, the Act requires courts to consider eight factors to determine whether or not cohabitation is occurring. Pursuant to N.J.S.A. 2A:34-23(n),
When assessing whether cohabitation is occurring, the court shall consider the following:
(1) Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
(2) Sharing or 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 a 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 subsection h. of R.S.25:1-5; and
(7) All other relevant evidence.
In evaluating whether cohabitation is occurring and whether alimony should be suspended or terminated, the court shall also consider the length of the relationship. A court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis.
While the Legislature borrowed language from the Konzelman Court in defining cohabitation 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,” the statute clarifies that cohabitation does not require the alimony recipient to actually reside with another person. N.J. Stat. Ann. § 2A:34-23. Consequently, the barrier that once seemed insurmountable has become more attainable for the payor spouse to overcome.
B. Terminate, Suspend, or Modify
Notably, the terms of the statute as set forth above explicitly allow a court to suspend or terminate alimony upon proof of cohabitation. However, the authority of the court is not strictly limited to these two options alone, as the statutory language does not preclude a court from modifying alimony if deemed appropriate under the circumstances:
Pending any matrimonial action or action for dissolution of a civil union brought in this State or elsewhere, or after judgment of divorce or dissolution or maintenance, whether obtained in this State or elsewhere, the court may make such order as to the alimony or maintenance of the parties . . . as the circumstances of the parties and the nature of the case shall render fit, reasonable and just . . .
N.J. Stat. Ann. § 2A:34-23. (emphasis added).
The permissive language employed by the Legislature permeates the statute and allows the courts to suspend, terminate, or modify alimony upon cohabitation based on the facts of the case, application of the law, and principles of equity. This interpretation is further supported by the court’s analysis of the amended statute in Spangenberg:
Recently, the Legislature adopted amendments to N.J.S.A. 2A:34-23, designed to more clearly quantify considerations examined when faced with a request to establish or modify alimony . . . Apt to this matter, the amendments include provisions regarding modification of alimony and the effect of a dependent spouse’s cohabitation . . .
Spangenberg, supra, 442 N.J. Super. at 536-37, 125 A.3d 739, 740.
The statutory language and case-law precedent interpreting the amended statute clearly support the position that our courts have the authority to terminate, suspend, or modify the payor spouse’s alimony obligation once cohabitation has been proven.
C. Quinn v. Quinn
The parameters of the New Jersey Alimony Reform Act and its effect on cohabitation continue to evolve. Our courts have already begun to interpret the statute and its practical application to matters involving the enforcement of cohabitation settlement provisions. For example, the New Jersey Supreme Court recently held that once cohabitation is proven, the inquiry ends and the terms of a marital settlement agreement providing for termination or modification of alimony are enforceable. Quinn v. Quinn, 225 N.J. 34, 53-4, 137 A.3d 423, 425 (2016). According to the Court,
[i]t is irrelevant that the cohabitation ceased during the trial when that relationship existed for a considerable period of time. Under those circumstance, when a judge finds that the spouse receiving alimony has cohabited, the obligor spouse is entitled to full enforcement of the parties’ agreement. When a court alters an agreement in the absence of a compelling reason, the court eviscerates the certitude the parties thought they had secured, and in the long run undermines this Court’s preference for settlement at all, including marital  disputes.
Id.at 55. (emphasis added)
The Quinn Court further opined that,
[w]hen parties to a matrimonial settlement agreement have agreed to permit termination of alimony on remarriage or cohabitation, they have recognized that each are equivalent events. In each situation the couple has formed an enduring and committed relationship. In each situation, the couple has combined forces to mutually comfort and assist the other. The only distinction between remarriage and cohabitation is a license and the recitation of vows in the presence of others. When the facts support no conclusion other than that the relationship has all the hallmarks of a marriage, the lack of official recognition offers no principled basis to treat cohabitation differently from an alimony terminating event.
Id. (emphasis added).
Clarification of cohabitation from the Legislature and the practical application of the statute by the courts have made it easier for a payor spouse to prove he or she is entitled to terminate alimony through enforcement of a marital settlement agreement. However, notwithstanding the objective factors set forth within the reformed statute, pursuing termination of alimony based on cohabitation continues to be a difficult burden to overcome, especially under circumstances where the recipient spouse is actively concealing cohabitation.