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Alimony Termination Based on Cohabitation
Can alimony be terminated if a former wife now cohabitates/lives with another man?

In some cases if a former wife cohabitates/lives with another companion, this may constitute a "change of circumstances" to justify a change in alimony. If the supported spouse lives with another man, then the court may reduce alimony. However, cohabitation alone is not enough to reduce alimony. The cohabitation must also be coupled with some economic consequences in order to modify alimony.

The courts use the economic contribution test to determine whether an alimony award to a dependent spouse should be reduced. This test looks to see if the cohabitation is similar to a permanent house situation or a marriage-like relationship. If the dependent spouse's new companion reduces her financial needs, then alimony may be reduced. Moreover, if the dependent spouse is using alimony to support her companion, then the payor spouse has very strong grounds to reduce alimony.

The payor spouse has the burden to prove that there has been a prima facie showing of cohabitation. The fact of cohabitation triggers a finding of a change of circumstances. Thereafter, the court will schedule a hearing, and permit the parties to conduct limited discovery. The payee spouse then has the burden to prove to the court that there is no economic consequence from the fact that she is living with another man.

In many property settlement agreements there are some very specific clauses as to alimony termination if the former wife lives with another man. The New Jersey courts have enforced property settlement agreements that provide for a termination of alimony regardless of economic circumstances if the payee spouse lives with another man. The courts however will not uphold a property settlement agreement which attempts to control the former wife's social activities through the suspension of alimony. If a property settlement agreement places unfair conditions on a former wife that have nothing to do with her financial status, then the agreement will be declared void.

If my former wife is now living with another man, will I automatically be able to have my alimony obligations terminated?

No. Cohabitation only constitutes a change in circumstances if it is coupled with economic consequences. This means that the spouse must receive a real economic benefit by cohabitating/living with another person. If the dependent former spouse if being fully supported by her male companion, then the ex-husband may qualify for a reduction or termination of his alimony obligations.

What if my ex-wife moves in with her boyfriend and she never remarries?

In order for cohabitation to be a sufficient ground to reduce/terminate alimony then there must be a permanent relationship. The cohabitation must be of a long-term or permanent nature. The ex-wife and her boyfriend must share living expenses. Staying overnight by either party a few times a month is generally not enough. This is a very touchy subject, because many times ex-wives will intentionally not remarry in order to keep getting support payments, even though they have found a new lifelong companion.

What is the legal process to make an application to terminate alimony based on the grounds of cohabitation/living together?

The application to terminate alimony based on cohabitation requires a two-tier process. First, the applicant must demonstrate that there are "changed circumstances" to justify discovery and an evidentiary hearing. Secondly, he must prove a factual basis for a reduction in alimony. In summary, the party who seeks to terminate alimony must first make a prima facie showing of cohabitation.

Once the prima facie showing is made, then the burden of showing a lack of economic benefit is then shifted to the dependent spouse. Ozolins v. Ozolins, 308 N.J. Super. 243 (App. Div. 1980).

Therefore, once the prima facie showing has been made, then the burden of proof is shifted to the supported spouse. In summary, in the case of Ozolins v. Ozolins, 308 N.J. Super. 243 (App. Div. 1980), the Appellate Division held that there is a rebutable presumption of changed circumstances arising upon a prima facie showing of cohabitation. Thereafter, the burden of proof is then shifted to supported spouse.

It is important to emphasize that alimony will only be reduced/terminated if the applicant can prove that his former wife receives a real economic advantage by living with her male companion. The applicant must prove that his former wife receives real support from her new companion. In many cases, it is impossible for an applicant to prove that his former wife receives substantial support from her companion.

What is the main case on alimony reduction based on cohabitation?

The main New Jersey case that the courts use to analyze alimony reduction motions based on cohabitation is Konzelman v. Konzelman, 307 N.J. Super. 150 (App. Div. 1998). In the Konzelman case, a former husband sought to enforce a clause in a divorce decree that provided that his former wife would lose her right to receive permanent alimony if she lived with another man for four continuous months.

In the Konzelman case, the New Jersey Supreme Court held that the family courts must consider the following factors in any Lepis case based on the grounds of cohabitation:

  • The establishment of a common residence;
  • A long-term intimate or romantic involvement;
  • Any shared assets or common bank accounts;
  • Joint contribution to household expenses;
  • The recognition of the relationship by the community.

What are the other considerations that a must a court consider in modifying alimony in the case of cohabitation?

In an alimony cohabitation case the court also must apply a needs-based test. In the case of Gayet v. Gayet, 92 N.J. 149 (1983), the New Jersey Supreme Court adopted the following test for reducing alimony if there is cohabitation:

  • Whether the new companion contributes to the former wife's support;
  • Whether the new companion resides in the former wife's home without contributing anything toward the household expenses.

Basically, a court will make an assessment of whether the former wife still needs the alimony support to survive. Many former husbands become obsessed when their former spouse resides with another man, mistakenly believing that they have hit the jackpot when their former wife moves in with another man. In many cases, they are sorely disappointed when their alimony reduction case is summarily dismissed. The family courts do not want to impoverish women.

In my experience, most judges will only reduce alimony based on cohabitation. Most judges simply will not completely terminate alimony based on cohabitation. Relationships are always fluid. It would be unreasonable to completely terminate an alimony award based on a former wife's new relationship with a companion. As we all are aware, people break up all of the time. A court does not want to terminate alimony when there is a real possibility that the former wife could break up with her companion in the foreseeable future.

My ex-wife has engaged in many affairs with several boyfriends after we got divorced. Can I now file an application to terminate her alimony based on the grounds of cohabitation?

No. When an ex-spouse engages in one or more sexual affairs after getting divorced, such activity will not by itself be sufficient to support an application of or a termination of alimony. Wertlake v. Wertlake, 137 N.J. Super. 476 (App. Div. 1975). In the Wertlake case, the trial judge canceled alimony for a woman who had a relationship with two men. The case was then appealed. The Appellate Division reversed on that the grounds that the trial court failed to make any determinations as to what impact, if any, those relationships had upon her further need for alimony. Id. at 487.

My ex-husband is a miser, and he insisted that we insert an automatic alimony termination provision(s) in our PSA. Will a court enforce this provision(s) if there is any future litigation to terminate my alimony award?

Automatic alimony termination provisions based on cohabitation are not favored, and are not likely to be upheld. See, Melletz v. Melletz, 271 N.J. Super. 359 (App. Div. 1994). In the Melletz case, the court refused to enforced a provision contained in a settlement agreement which specifically declared that the Supreme Court's Gayet Decision would not apply, and that a wife's mere cohabitation would suspend her husband's alimony obligation.

In another case called Boardman v. Boardman, 314 N.J. Super. 340 (App. Div. 1998), the Appellate Division rejected a trial judge's order that directed that the wife's alimony obligation be terminated upon her husband's cohabitation with an unrelated female. The Appellate Division held that prospective termination provisions were contrary to law, and that the test was whether one cohabitant supports or subsidizes the other "under circumstances sufficient to entitle the supporting spouse to relief." Id. at 347.

In the recent case of Konzelman v. Konzelman, 158 N.J. 185 (1999), the New Jersey Supreme Court held that agreements to terminate alimony on the condition of cohabitation must be voluntary and consensual. Moreover, the court held that this agreements must be based on assurances that these undertakings are fully informed, knowingly assumed, and are fair and equitable. The Konzelman court further held that the fairness of agreements to terminate alimony must be assessed in light of all material surrounding circumstances and will vary from case to case. Id. 198. A fair agreement required that each party must be adequately represented by independent counsel, and that both parties must completely understand the nature of the agreement.

I have been divorced for five years, and I was financially destroyed in my divorce…

I am now paying my ex-wife $2,000 per month in alimony. My ex-wife is now dating another man, and he frequently stays overnight at her home. What are my chances of terminating alimony based on her new relationship with her boyfriend?

Not very good. A mere romantic, casual or a social relationship is not sufficient grounds to terminate alimony. The relationship of cohabitation must be proven to have stability, permanency and usual interdependence. The ordinary understanding of cohabitation is based on that factors that make the relationship close and enduring. Cohabitation involves 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 fiances such as joint bank accounts, sharing living expenses and household chores, and the recognition of the relations in the couple's social and family circles. Konzelman v. Konzelman, 158 N.J. 185 (1999).

What are some other important cases on terminating alimony based on cohabitation?

Conlon v. Conlon, 335 N.J. Super. 638 (Ch. Div. 2000).

Another important case is Conlon v. Conlon, 335 N.J. Super. 638 (Ch. Div. 2000). Here, the defendant moved post-judgment to terminate his agreed upon limited duration alimony obligation. The application was based on his former wife's open, notorious, extended and admitted cohabitation with another male. There was no "Konzelman" clause in the PSA. A Konzelman clause provides for the termination of alimony upon a predetermined period of cohabitation. The court treated the motion as one for summary judgment. The family court denied the motion for summary judgment, and it granted the former wife a plenary hearing. The court held that it could not terminate alimony unless there was a ful record established through discovery.

The parties were married in 1979 and they remained together until 1993. The parties were divorced on May 11, 1995. The agreement required the defendant husband to pay alimony to the plaintiff wife for 12 years. The amount of the alimony was $2,300 per month. In the fourth year of alimony payments, the defendant filed a motion to terminate the alimony. The defendant asserted that the plaintiff was cohabiting with another man. In response, the plaintiff wife filed a cross-motion for an increase in alimony.

The court scheduled a plenary hearing to examine the monetary impact of the cohabitation arrangement. In the case at bar, the plaintiff did not deny that she was living with anther man. However, she argued that her budgetary allocations with her boyfriend were similar to those with her female roommate.

The main issue in this case was whether if a former spouse engages in "live in" relationship with another man does she forfeit her limited duration alimony award. Another question was whether a court could terminate alimony by only reviewing the papers, without holding a hearing, and without reviewing the economic impact of the relationship.

The main point of this case is that a trial courts will not terminate alimony unless there is a full plenary hearing and discovery. The trial courts will not recklessly terminate alimony based on only reviewing legal papers. Moreover, the trial courts must carefully evaluate the economic relationships of the supported spouse before it will terminate alimony.

Rose v. Csapo, 359 N.J. Super. 53 (Ch. Div. 2002).

An important case is Rose v. Csapo, 359 N.J. Super. 53 (Ch. Div. 2002). Here, the trial court held that a wife who, pendent lite cohabited with a "paramour" was not entitled to alimony. The trial court previously ordered temporary alimony. However, the temporary alimony was terminated because of her cohabitation with another man. The court found that the wife had purchased a home jointly with her paramour, shared roof expense and common meals, and for all interests and purposes held themselves out as a social "couple." The court held that the supporting spouse should not be placed in the untenable position of being required to finance the spouse's new relationship.

Palmieri v. Palmieri, 388 N.J. 562 (App. Div. 2006).

In the case of Palmieri v. Palmieri, 388 N.J. 562 (App. Div. 2006), the Appellate Division reversed a trial court's termination of a former husband's permanent alimony obligation. Here, the information provided in the certifications and in an investigator's reports demonstrated - over the former wife's certified denial to the contrary - "credible" evidence that the former wife was cohabiting with a male friend. Therefore, this factor invoked the termination of alimony agreement in the parties' settlement agreement.

The defendant filed a motion to terminate his alimony obligations on his belief that the plaintiff, his ex-wife was living with an unrelated male. Pursuant to the parties' PSA the defendant husband's obligation to pay alimony would terminate on the "wife's residing with an unrelated person or vice versa, regardless of the financial arrangements between the wife and said unrelated person." The defendant had hired a private investigator who had observed an unrelated male walking the plaintiff's dog, and taking out the garbage at the plaintiff's home, and leaving and arriving at the plaintiff's home.

The plaintiff opposed the motion, and she argued that although she was dating another man, she was not cohabitating with him. The trial court found that the plaintiff was residing with an unrelated male and it terminated the defendant's alimony obligations. The Appellate Division reversed, and it held that material disputes in fact that regard the nature of the plaintiff's relationship with another male should not have been resolved without a plenary hearing. The court also held that even if the court found, on remand, that the plaintiff was residing with another male, the defendant's alimony obligation would not be automatically terminated. The court also noted that the language in the PSA was over broad, and it could lead to a harsh result.

The Appellate Division further held that a mere romantic relationship between the supported spouse and another individual does not justify the termination of alimony. Therefore, the court held that any language that proposed to terminate alimony upon the supported spouse's "residing with an unrelated person" regardless of the financial arrangements, is therefore unenforceable.

On remand, the trial court was directed to hold a plenary hearing to examine more critically the true nature of the wife's relations with her alleged cohabitant.

Lande v. Lande, New Jersey App. Div., May 26, 2005.

In this case the Appellate Division held that the trial court was wrong when it refused to terminate the ex-husband's alimony. The Appellate Division held that the ex-wife was cohabiting with her paramour as man and wife with all but the marriage certificate. The court noted that the ex-wife intentionally failed to provide her paramour's financial information to the court and to her ex-husband. The court held that this factor prevented the motion court from being able to properly evaluate the application to terminate alimony. Finally, the court held that if the ex-wife wanted to reinstate her alimony, then she must provide the missing information about her paramour to the court. Moreover, the court noted she will have the burden of proving her alleged financial dependence on her ex-husband.


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