Dear Cassie: What is cohabitation, and how does it impact alimony?
Cohabitation is a relationship between the recipient of alimony and a third party which can provide the basis for the termination or suspension of alimony. Unless the parties agree otherwise in their Settlement Agreement at the time of divorce, alimony is always modifiable based upon a future change in circumstance. Cohabitation is one such recognized change in circumstance.
For many years, up until 2014, cohabitation was defined by New Jersey case law. Pursuant to that case law, whether or not cohabitation was a basis to terminate or modify alimony largely turned on the economic impact of the cohabitation relationship on the supported spouse. In other words, an alimony payor was generally entitled to terminate or modify his or her alimony obligation to the payee in the event cohabitation impacted the payee’s need for alimony, either because the third party was financially supporting the payee, or vice versa. Cohabitation existed when the alimony recipient and the third party were in a relationship with such “stability, permanency and mutual interdependence” that it was as if an unmarried couple was essentially living as spouses.
In 2014, New Jersey’s alimony statute was amended. As part of that amendment, the New Jersey legislature added to the statute a provision concerning cohabitation. That provision now controls cohabitation law in New Jersey. Pursuant to the statute, the legislature departed from the “economic needs” standard that had previously existed in New Jersey case law. Now, financial entanglement is just one factor for a court to consider in its cohabitation analysis; it is not required to prove cohabitation, nor is it central to the analysis any longer. Instead, cohabitation is a basis to terminate or suspend alimony if it can be shown that there is “a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges commonly associated with marriage or civil union but does not necessarily maintain a single common household.” In this fashion, the examination turns more on the nature of the relationship between the alimony recipient and the third party than on their economic interrelationship.
It should also be noted that the legislature specifically departed from any requirement that the alimony recipient and third party reside together. The statute specifically states, “[a] court may not find an absence of cohabitation solely on grounds that the couple does not live together on a fully-time basis.”
If you are dealing with the issue of cohabitation, you should seek the advice of matrimonial counsel.
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Cassie Murphy is a divorce and family law Partner with the Law Offices of Paone, Zaleski & Murphy, with offices in Red Bank and Woodbridge.