In 1967, Mick Jagger of The Rolling Stones famously crooned “let’s spend the night together,” to whomever his love interest was at the time. Mick Jagger probably would never have predicted that this turn of phrase would become relevant in New Jersey family law circa 2017.
As it stands today in New Jersey, anyone who has an obligation to pay alimony to an ex-spouse, or anyone who is receiving alimony from an ex-spouse, may be aware that a Court finding that the party receiving alimony is cohabiting with a new partner can subject the alimony obligation to modification, or even perhaps to termination.
But what exactly is meant by ‘cohabitation’? The colloquial understanding of the term ‘cohabitation’ is that of a couple in a romantic relationship who reside together without being married. As far as the legal interpretation of cohabitation in divorce cases in which there is an alimony obligation, the definition is not so straightforward.
Pursuant to N.J.S.A.2A:34-23n, alimony can be suspended or terminated if the spouse receiving alimony “cohabits” with another person. Cohabitation is defined as a mutually supportive, intimate personal relationship is which a couple has undertaken duties and privileges which are commonly associated with marriage/civil union but does not necessarily maintain a single common household.
The factors for a finding of cohabitation are as follows:
(1) Intertwined finances (joint bank accounts, real estate, debts);
(2) Sharing/joint responsibility for living expenses;
(3) Recognition of the relationship within social and family circles;
(4) Living together, frequency of contact, duration of relationship, other indicia of a “mutually supportive intimate personal relationship;”
(5) Sharing household chores;
(6) Recipient has received a promise of support from another person;
(7) All other relevant evidence.
Notably, a common residence is no longer required for a finding of cohabitation. There have been amendments to the alimony statute, most recently in September 2014. Should the Court make a finding of cohabitation under the new statute, alimony may still be suspended or terminated.
By way of example, imagine a couple named Winnie and Hugo who were married for fifteen years and who are now divorced. Pursuant to Winnie and Hugo’s Property Settlement Agreement which was incorporated into their Final Judgment of Divorce, Hugo is obligated to pay Winnie alimony for seven years following the Final Judgment of Divorce.
Two years after the divorce, Hugo learns that Winnie has begun dating Beau. Winnie and Beau spend a significant amount of their free time together. Winnie sometimes spends the night at Beau’s home, and vise versa. Winnie and Beau do not live together, and both pay the rent and utilities on their respective residences.
Can a Court nonetheless make a finding of cohabitation, even though Winnie and Beau do not share a residence and merely ‘spend the night together’? Maybe so and maybe not, depending upon the circumstances.
Although this is a hypothetical situation, the possible ramifications of N.J.S.A.2A:34-23n, whether you are a Winnie or a Hugo, can be quite significant. But your situation is not a hypothetical one. Whether you are the recipient of alimony or the one paying, a Court finding as to cohabitation can have a significant impact, and an experienced matrimonial attorney may be able to help.
For more information, call South Jersey family law firm, Adinolfi & Packman, at 856-428-8334 or contact us online.