Family Law: Understanding and Trying Cohabitation CasesJune 18, 2012 – Articles New Jersey Law Journal
The issue of cohabitation and its effect on support obligations has long been a provocative topic in New Jersey. Given the present economy, in which more people are seeking to combine living expenses, as well as the sociological shift in relationships whereby more and more couples are choosing to reside together without the benefit of marriage, this issue has come to the forefront of many lawyers’ cases.
When there is an alimony responsibility, the question of what, if any, effect the dependent spouse’s cohabitation may have on the supporting spouse’s obligation must be considered. There is no issue more difficult for counsel to explain to a supporting spouse than the fact that he or she may be ordered to continue to pay support to a former spouse, even while that former spouse is living with a third party. Despite the high level of emotions that run through these cases, the lawyer’s role is to remain calm and focus on the economics at hand. This article seeks to set forth the law on the issue of cohabitation, as well as to define the shifting burdens of proof, and to provide practice tips for those attorneys involved in cohabitation cases.
When a dependent spouse begins to live with a third party, the two questions that must be resolved are, first, whether the relationship is a “marital-type” relationship, and, second, whether or not the relationship has reduced the needs of the dependent former spouse. In 1975, the Appellate Division, in Garlinger v. Garlinger, 137 N.J. Super. 56 (App. Div. 1975), set forth the test that courts consider when reviewing an issue of cohabitation; it remains the lodestar analysis today. A modification of alimony is appropriate when either the third party, with whom the dependent spouse is allegedly cohabiting, contributes to the dependent spouse’s support or resides in the dependent spouse’s home without contributing anything toward household expenses. Adopting the Garlinger test, the Supreme Court in Gayet v. Gayet, 92 N.J. 149 (1983), held that the cohabitation of a former spouse receiving alimony constitutes changed circumstances that may result in either modification or termination of the supporting spouse’s alimony obligation. These comments notwithstanding, the questions that a practitioner must be able to answer are: What constitutes cohabitation? Who bears the burden of proof once the party alleges cohabitation? And, how does a practitioner prove cohabitation in order to obtain a reduction or termination of alimony for the supporting spouse?
In Konzelman v. Konzelman, 307 N.J. Super 150 (App. Div. 1998), the Appellate Division defined cohabitation justifying a modification of alimony obligations as “tantamount to a marriage.” Neither a “common residence” nor a “mere romantic casual or social relationship” is sufficient to terminate alimony, but rather the courts act in those situations that present a relationship that is “close and enduring.” Examples of such a relationship include intertwined finances, shared living expenses, participation in household chores and recognition of the relationship by the couple’s friends and family.
Konzelman involved a situation where the wife’s boyfriend picked up a newspaper from the driveway in the morning, went to work from the wife’s residence, returned back to the wife’s residence and typically remained there overnight. Moreover, he had a garage door opener to the wife’s home, knew the code for the home’s alarm system, and kept his tools, bicycles, skis, clothes and toiletries at the wife’s home. He performed household chores such as cleaning the gutters and the swimming pool, and he and the wife had a joint savings account. Dismissing the boyfriend’s claims that he resided with his elderly mother in a one-bedroom condo, the court found cohabitation and terminated the husband’s support obligation. However, in Konzelman, the husband and wife, at the time of their divorce, provided within their property settlement agreement that alimony would terminate in the event the wife lived with an unrelated male.
Subsequent to Konzelman, the case law has evolved such that even in the absence of such a termination clause, the cohabitation will result in either a termination or a modification based upon the circumstances.
The initial burden in a cohabitation matter falls upon the supporting spouse to demonstrate that there is cohabitation. In Ozlins v. Ozlins, 308 N.J. Super. 243 (App. Div. 1998), the court provided that a showing of cohabitation creates a rebuttable presumption of changed circumstances and shifts the burden to the defendant spouse to show that neither she nor the cohabitant receive an actual economic benefit from the cohabitation. The reasoning behind this shift of burden is equitable; it would be unreasonable to place the burden of proof on a party not having access to the evidence necessary to support that burden of proof. Many times this involves use of a private investigator to determine whether the third party and the dependent spouse are spending time, including overnights, together.
Once a prima facie showing of cohabitation is made by the moving party, courts will typically order discovery in order to determine what financial effects the cohabitation has on the dependent spouse. It is at this point in the litigation where an attorney must be creative and diligent in determining whether the situation demonstrates intertwined finances. Here, discovery is king; examination of both parties’ bank accounts, payments for living expenses and financial interdependence must be examined carefully. Additionally, the Supreme Court has noted that there should be recognition of the relationship in the couple and family’s circle that will necessitate seeking discovery of fact witnesses and third parties. If there are children, who is the emergency contact? Are there deposits by undisclosed sources? Who pays for vacations? Do the deposits to the dependent spouse’s accounts match up to his or her expenditures? To the extent that the third party makes claims that he or she does not live with the dependent spouse, examination of the third party’s utility statements as well as other expense should be made. Is the air conditioner running in the purported paramour’s house in the summer?
The vast majority of cohabitation cases result in a reduction rather than a termination of alimony. These cases can be very expensive to litigate, and the courts are notoriously backlogged, so counsel would be wise to consider alternative dispute resolution once the initial showing of cohabitation is made. Moreover, if the cohabitation ends, for any number of reasons, the dependent spouse can come back and ask for a resumption of the full amount of alimony.
When preparing a matrimonial settlement agreement, practitioners may wish to consider the inclusion of a cohabitation clause that calls for the termination, or at least a review, of alimony upon cohabitation. In the case of Melletz v. Melletz, 271 N.J. Super. 359 (App. Div. 1994), the agreement that was reviewed by the court had a specific term which defined cohabitation as when:
[T]he wife and the unrelated male (hereinafter “male”) generally residing together in a common residence, or residences where they generally engage in some, but not necessarily all, of the following: (a) Meals taken together at the residence(s); (b) Departing from and returning to the residence of the other for employment and/or social purposes;(c) Maintaining clothing at the other’s residence; (d) Sleeping together at the residence or the residence of the other; (e) Receiving telephone calls at the residence or the residence of the other. The occurrence of any of the following shall not defeat cohabitation as the parties have defined that term herein: (a) Temporary interruptions of the relationship shall not defeat a claim of cohabitation; (b) Alternating of residences; (c) Maintenance of a separate residence by the male.”
While, as a practical matter, such a specific provision may be difficult to negotiate, at least a reference to the applicable case law should be in the agreement, along with an affirmative duty of the dependent spouse to advise the supporting spouse of cohabitation.
Cohabitation cases are challenging. There is not an immediate termination of support obligations upon proof of the cohabitation, and once an initial showing is made by the supporting former spouse, the burden of proof shifts to the supported spouse to demonstrate that there is no substantial financial benefit justifying a change in support obligations. In addition to the application of the law, enough cannot be said about the emotional impact on a client when they are informed that they may still have to pay some level of support even when the former spouse is living with another individual in such a relationship. An attorney representing the supported spouse is counseled to carefully examine the Case Information Statements of the supported spouse at the time the obligation was set when advising as to a course of action. These cases need pragmatic attorneys to resolve them in sensible ways.
Reprinted with permission from the June 18 issue of The New Jersey Law Journal. (c) 2012 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.