In a decision just a few days ago, the New Jersey Supreme Court ruled that where a divorce agreement requires the termination of alimony due to an ex-spouse’s cohabitation, that termination will be enforced even if that cohabitation is temporary. In this specific case, the majority upheld a property settlement agreement that mandated the outright termination of alimony for a woman who lived with another man for two years then ended the relationship, even though she was supposed to receive permanent alimony after divorcing her husband of 23 years.
In this 4-2 decision, the majority opinion found that the divorcing parties voluntarily entered into their agreement, both were represented, and both knew what they were agreeing to. The majority wrote, “Marital agreements, including PSAs that clearly and unequivocally provide for the termination of alimony upon cohabitation, are enforceable when the parties enter such agreements knowingly and voluntarily.”
Perhaps more interesting is the dissenting opinion written by Justice Barry Albin. Justice Albin argued that enforcing such agreements violates the public policy of equity, calling such PSA’s “instruments of oppression.” He wrote, “A property settlement agreement in a divorce action should address the economic consequences of a marriage’s dissolution; it should not contain shackles that deprive a spouse of the right to seek love and companionship,” he said.
Writing for the majority, Judge Cuff (temporarily assigned to the Supreme Court) said the majority rejected the dissent’s reasoning because it was clear that the ex-wife knew the consequences she would face if she began living with another person in a romantic relationship. She wrote, “[W]e reiterate today that an agreement to terminate alimony upon cohabitation by fully informed parties, represented by independent counsel, and without any evidence of overreaching, fraud, or coercion is enforceable.”
This case is another in a series of recent decisions and legislation that appear to restrict alimony awards. Recent New Jersey legislation has limited alimony terms, created presumptive retirement ages, and more broadly defined cohabitation. This is reflective a larger national trend to reign in what are perceived as excessive alimony awards and overly permissive judicial determinations across the country.