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Living with Your Best Friend’s Brother Is Not Cohabitation

Couple moving boxes

Cohabitation is a term of art. It involves a mutually supportive, intimate, personal relationship where parties share the duties, responsibilities, and privileges typically associated with marriage. Said another way, it is a relationship that has the hallmarks of marriage, but without the marriage ceremony.

When you allege cohabitation, you must be sure to have evidence to show a stable, prolonged, marital-like relationship.

In the recent Appellate Division case of Schmitt v. Lupo-Schmitt, husband/plaintiff was made to pay his former wife’s/defendant’s counsel fees for her having to respond to his application claiming she was cohabiting when the trial court found no evidence of cohabitation.

Plaintiff filed a motion to terminate his alimony obligation when his former wife moved into her best friend’s father’s house while she awaited placement in affordable housing. The father and his son also lived in the house. Plaintiff alleged that his former wife was cohabiting with her best friend’s brother.

The former wife and the best friend’s brother both certified that they did not have a romantic relationship and that the brother did not support her nor provide her with any financial assistance.

The trial court found plaintiff’s allegations meritless and unsupported by anything other than his unfounded accusations. The court made clear that just because the defendant was living in the house with a person of the opposite sex, that does not mean they were cohabiting.

Moreover, since the plaintiff was unable to provide any evidence to support his bald assertions of cohabitation, the court awarded his former wife counsel fees for having to respond to his cohabitation motion. The Appellate Division affirmed the trial court’s decision.

While cohabitation is a hot area of the law, you must be careful when asserting a claim of cohabitation. To move forward with a successful cohabitation application, be sure to have evidence to strongly support your claim.

If you wish to discuss permissible evidence or the extent of such evidence in your possession, please do not hesitate to contact this office and schedule a consultation. If you have any questions or concerns about this post or any other matrimonial or family law issue, please do not hesitate to contact me at