Marital settlement agreements often provide that a party can suspend, modify or terminate the obligation to pay alimony if the recipient spouse “cohabits” with another person. Currently, cohabitation under New Jersey law is 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.” The reality under New Jersey law is that proving cohabitation can be difficult as noted in the recent New Jersey appellate case of Landau v. Landau.
In Landau, the husband filed an application with the Court to terminate, suspend or modify his alimony obligation based on his allegation that his former wife was cohabiting with the man she had been seeing exclusively for over a year. The husband filed a motion alleging the wife and her boyfriend had traveled together, attended social and family events as a couple, posted photos and accounts of their activities on social media sites and regularly slept at each other’s home. The wife opposed the motion stating that she was in a dating relationship that was not tantamount to marriage. She stated they never discussed their future together, paid their own expenses, went on separate trips and often attended important events alone.
Acknowledging the difficulties in proving cohabitation, the lower court judge allowed the husband discovery to uncover facts supporting his claims, but specifically noted that the husband had not made an initial showing of cohabitation. When the former wife appealed, the appellate court disallowed the discovery, indicating that discovery may only be granted if an initial showing of cohabitation was made first. Since the lower court judge had said an initial showing of cohabitation had not been made, no discovery should have been allowed.
The Landau case is a reminder of the challenges in proving cohabitation. Divorced parties need to establish a strong case before they go to court. This will provide the best chance of success at suspending or eliminating an alimony obligation. If you suspect your former spouse is cohabiting, contact us for a consultation.
For more information, read our related post – I Think My Ex-Spouse Is Cohabiting. Can I Stop Paying Alimony?
