Family lawyers frequently hear from alimony payors who discover that their ex-spouse has entered into a romantic relationship with someone new. These payors are often surprised to learn that their ex-spouse’s new relationship does not automatically terminate their obligation to pay alimony. Rather, the court would traditionally inquire as to whether the alimony recipient is “cohabitating” (i.e. living together) with another person unrelated by blood or marriage. Often times, cohabitation is difficult to prove. Alimony payors would frequently have to hire private investigators, obtain witnesses and other proofs to try to establish that the alimony recipient was living together with another person.
Recently, New Jersey amended its alimony laws to eliminate the gamesmanship that often occurs in assessing if the recipient of alimony is cohabitating. Under the new law, alimony payors no longer have to prove that the ex-spouse and paramour are residing together. In fact, the new alimony law redefines “cohabitation” 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.”
Under the new law, in determining whether cohabitation exists, the court must consider several factors, including: the sharing of finances and living expenses; the recognition of the relationship in the couple’s social and family circle; the frequency of contact; and the duration of the relationship. If the court determines that the couple is “cohabiting,” alimony may be reduced or terminated regardless of whether the parties reside together or not. The statute makes clear that in evaluating whether alimony should be suspended or terminated, “a court may not find absence of cohabitation solely on grounds that the couple does not live together on a full-time basis.”
The new law is significant for alimony payors and alimony recipients alike. Prior to the passage of the new law, most alimony recipients could avoid the reduction or termination of support by maintaining a separate residence from his or her paramour. To be sure, many alimony recipients purposefully avoided residing with their significant other after divorce to ensure that support would continue. For the same reason, alimony payors were often unsuccessful in reducing or terminating support, regardless of the strength of the relationship his or her spouse had formed with a third party. Payors would fume over continuing to pay support for the ex-spouse who was in an exclusive and, often, long-term relationship with another individual.
The new alimony law reflects a recognition of the changing dynamic of the modern American family and modern relationships. Recent studies confirm that more and more couples, whether married or in an exclusive relationship, are choosing to reside in separate residences. This trend has become so prevalent that sociologists have coined a new phrase, “Living Apart Together” (LAT) for this phenomenon. These couples often exhibit all of the characteristics of a married couple. They present themselves to friends and family as an exclusive couple; they share finances; and they make plans to reach future, mutual goals. However, at the end of the day, they each return home to separate residences.
Applications to reduce or modify alimony obligations are bound to increase as a result of the new alimony law. To be clear, the new alimony law does not allow for the termination of alimony merely because an ex-spouse has entered into a dating relationship with a third party. However, the court will be called upon to analyze the new relationship of the ex-spouse and to make a call as to whether a dating relationship has evolved into something more significant. This analysis will be fact specific and the strengths and weaknesses of each case will need to be examined individually. What is clear is that the court will no longer be focusing simply on the question of whether the ex-spouse is residing with a third party.
