Cohabitation and the Amended Alimony Statute: Has the Economic Needs’ Standard Been Replaced? by Cassie Murphy

On Sept.10, 2014, New Jersey Governor Chris Christie signed into law P.L.2014, c.42, which modified New Jersey’s alimony statute. These changes to the alimony statute included a codification of a new legal standard for cohabitation—a standard that had previously been defined and shaped by case law only. The text of the amended alimony statute as it pertains to cohabitation reads as follows:

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Alimony may be suspended or terminated if the payee cohabits with another person. Cohabitation involves 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.

When assessing whether cohabitation is occurring, the court shall consider the following:

  1. Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
  2. Sharing or joint responsibility for living expenses;
  3. Recognition of the relationship in the couple’s social and family circle;
  4. Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;
  5. Sharing household chores;
  6. Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S.25:1-5; and
  7. All other relevant evidence.

In evaluating whether cohabitation is occurring and whether alimony should be suspended or terminated, the court shall also consider the length of the relationship. A court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis.1

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How does the standard set forth in this amended alimony statute differ from the standard established in the cohabitation case law preceding the amendment? Although the factors identified in the statute may seem familiar to many practitioners, a closer look at the underlying case law makes clear that the amendment represents a paradigm shift in the policy behind cohabitation claims.

New Jersey’s cohabitation case law developed over a period in excess of 40 years prior to the alimony statute’s amendment. A series of cases in the 1970s quickly established the underlying principle behind a claim of cohabitation: A pay or is entitled to terminate or modify his or her alimony obligation to the payee in the event cohabitation impacts the payee’s need for alimony.2 These cases consistently recognized that, although a former spouse’s cohabitation may constitute “unchastity,”3 or may be “unvirtuous” and “immoral,”4the conduct alone, without a corresponding financial impact, was insufficient to entitle a pay or spouse to relief.

For example, in the 1973 Chancery Division case of Edelman v. Edelman, a former husband sought to modify his alimony obligation to his former wife due to her cohabitation with another man, based upon the premise that enforcement of his obligation would otherwise be “unconscionable.”5 The court reduced the former husband’s alimony obligation, but also specifically noted in its decision the facts that the former husband’s income had decreased, while the former wife’s income had increased, post-divorce.6 In so holding, the court implicitly recognized that cohabitation, in and of itself, did not constitute a basis for relief.

Shortly thereafter, in 1974, another Chancery Division case began to define the factors applicable to a cohabitation claim.7In Grossman v. Grossman, the former husband’s “sole ground for relief” in seeking to modify his alimony obligation was his former wife’s relationship with a different man.8 In advancing this claim, the former husband argued that the court must consider the “interests of the State”in morality when presented with a cohabitation claim.9 The court rejected such a premise, stating that a former wife’s “unchastity” is “at most a factor” to be considered in the case, as a “wife is not responsible to her former husband for her conduct.”10 Accordingly, the husband’s request that the court essentially punish the former wife for her new relationship was “not well based.”11

The court articulated the standard it found to be applicable instead: “if [the former wife] is receiving financial assistance from another man with whom she has commenced living since the alimony award was made, this may well constitute a change of circumstances calling for a modification of the alimony award,” although no precise formula could be articulated.12 The court held that a former husband is entitled to a rebut table presumption that “a new adult member of his former wife’s household is contributing to the expenses of that household, thus reducing her needs.”13 Thus, the Grossman court focused on the financial impact to the former wife’s needs by virtue of her cohabitation—the beginnings of the ‘economic need’ or ‘economic benefit’ standard.

The first New Jersey Appellate Division case to address the issue of cohabitation expressly rejected the premise that cohabitation, standing alone, was a sufficient basis to terminate or modify alimony. 14 In Garlinger v. Garlinger, the trial court had suspended a former husband’s alimony obligation to his former wife due to cohabitation, stating that it was “unconscionable to compel a husband by his daily labor to support the divorced wife in idleness and immorality.”15

The Appellate Division disagreed, and held:

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If it is shown that the wife is being supported in whole or in part by the paramour, the former husband may come into court for a determination of whether the alimony should be terminated or reduced. Similarly, if the paramour resides in the wife’s home without contributing anything toward the purchase of food or the payment of normal household bills, then there may be a reasonable inference that the wife’s alimony is being used, at least in part, for the benefit of the paramour, in which case it could be argued with force that the amount thereof should be modified accordingly. In short, the inquiry is whether the former wife’s illicit relationship with another man, apart from misconduct Per se, has produced a change of circumstances sufficient to entitle the former husband to relief.16

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The Appellate Division further opined that a contrary view, which would require a wife to live a “chaste” life after divorce, would be “distinct[ly] punitive,” and reflected a “double standard of morality.”17

Following the Garlinger decision, similar results were reached in Wertlake v. Wertlake and Eames v. Eames, advancing the economic need standard.18 In the former case, the Appellate Division remanded to the trial court the issue of the impact of a former wife’s cohabitation on her former husband’s alimony obligation, as the trial court had improperly modified the alimony based solely on the existence of the former wife’s new relationship, without any determination of what effect that relationship actually had on the former wife’s need for alimony.19 And again, in Eames, the Chancery Division reiterated that “the determinative issue is whether the alleged cohabitation of [the supported spouse] has affected her need for the support money, either because of receiving support from her paramour or the probability of her utilizing the amount sought, or a portion thereof, to support a paramour.”20

Thereafter, in 1983, the New Jersey Supreme Court decided the seminal case of Gayet v. Gayet—the first time the Supreme Court considered and determined the legal standard applicable in cohabitation cases.21 In that case, the former husband moved to terminate alimony, alleging that the former wife was cohabiting with another man “as husband and wife.”22 After a plenary hearing, the trial court retroactively reduced the former wife’s alimony, and terminated it prospectively.23 The Supreme Court noted the two competing policy considerations at issue: first, the concept that alimony is no longer justified “when the supported spouse forms a new bond that eliminates the prior dependency;” and second, the concept of the right to privacy, autonomy, and the freedom to develop personal relationships without government interference.24

In rejecting the viewpoint of a minority of jurisdictions that post-divorce cohabitation was a per se basis to terminate alimony, the Supreme Court held that “[t]he extent of actual economic dependency, not one’s conduct as a cohabitant, must determine the duration of support as well as its amount.”25 Thus, the New Jersey Supreme Court adopted the economic need test set forth in Garlinger v. Garlinger, whereby a court must examine whether one cohabitant financially supports the other, such that the relationship has reduced the financial needs of the payee.26

In dicta, the Supreme Court stated that the test to be employed was not dissimilar to an examination of whether “a group bears the generic character of a family unit as a relatively permanent household.”27 In so stating, the Supreme Court for the first time attempted to define the characteristics of a relationship that would qualify as cohabitation.

Two important decisions following Gayet clarified the burden of proof applicable in cohabitation cases, while simultaneously reaffirming the economic need test established in cohabitation precedent. In the 1992 Chancery Division decision of Frantz v. Frantz, the court suggested that the burden of proof to address the economic effect of cohabitation must fall upon the supported spouse after the supporting spouse has made a prima facie showing of changed circumstances, as the supported spouse is the party with access to the evidence necessary to support the burden of proof.28 This holding, as well as the 1974 Chancery Division holding in Grossman, supra, was ultimately adopted by the Appellate Division in the 1998 case of Ozolins v. Ozolins, which found that a showing of cohabitation “creates a rebuttable presumption of changed circumstances shifting the burden to the dependent spouse to show that there is no actual economic benefit to the spouse or the cohabitant.”29

Again in Boardman v. Boardman, the Appellate Division reiterated the economic need test, thus rejecting a provision in a divorce judgment entered by a trial judge whereby alimony would automatically terminate upon the supporting spouse’s cohabitation.30

A similar analysis was undertaken in Conlon v. Conlon.31 In that case, the supporting spouse alleged that the holdings of two recent cohabitation decisions rendered unnecessary any examination of the economic impact of the relationship on the payee spouse in a cohabitation claim.32 The trial court rejected this argument, emphasizing that “[t]he infusion of the economic qualification into the calculus of this determination distinguishes the inquiry from an impermissible attempt to control the private conduct of an individual in violation of a frequently stated public policy.”33

Thus, the case law wasunequivocal that the relationship between a supported spouse and a third party, in and of itself, did not qualify as changed circumstances—but what exactly is cohabitation?

In 1999, the New Jersey Supreme Court decided the case of Konzelman v. Konzelman, which addressed the enforceability of a clause in a property settlement agreement thatauthorized the automatic termination of alimony upon cohabitation,“without regard to the economic consequences of the relationship.”34 The Supreme Court reaffirmed that, absent such a provision in a property settlement agreement, the economic need test mandates a reduction in alimony “in proportion to the contribution of the cohabitor to the dependent spouse’s needs.”35

Relevant to the subject matter of this article, however, was the Supreme Court’s discussion of what conduct constitutes cohabitation. The Supreme Court stated that cohabitation is not “[a] mere romantic, casual or social relationship;” it must have the “stability, permanency and mutual interdependence” whereby an unmarried couple essentially lives as husband and wife.36In dicta, the Supreme Court opined that the “duties and privileges” undertaken by unmarried couples living in a relationship akin to marriage include: living together; intertwining finances; sharing living expenses; sharing household chores; and recognizing the relationship in social and family circles.37 Many of these factors now appear in the modified alimony statute.

Finally, in 2013, the case of Reese v. Weisrefined the definition of economic benefit to the supported spouse.38 The Appellate Division held that the trial court must not only consider “direct economic benefits” to the supported spouse resulting from the cohabitation, such as direct payments by the cohabitant toward the supported spouse’s shelter, transportation, food, and clothing; the trial court must also consider “indirect economic benefits” to the supported spouse resulting from the cohabitation, such as the cohabitant continuing to pay his or her own shelter expenses after the supporting spouse has moved into his or her home, and provisions of emoluments or “lifestyle enhancements” by the cohabitant to the supported spouse, including vacations and other gifts.39 The Appellate Division also found that a simple calculation of the money paid to the supported spouse by the cohabitant does not end the inquiry.40 Instead, the trial court must also consider the characteristics of the new relationship, to determine if it exhibits those traits commonly associated with marriage.41

Now enter the 2014 amendments to the alimony statute. Although at first blush the statute appears to codify those factors relative to a cohabitation analysis previously suggested by the Konzelman court, a closer examination of the statute indicates otherwise. Over 40 years of cohabitation case law have affirmed, again and again, that the inquiry in a cohabitation case must first and foremost be on the economic impact of the relationship on the supported spouse. If, and only if, the relationship impacts the supported spouse’s financial need,can there be a finding of changed circumstances that could justify a review of alimony. Again and again, the concept of the existence of a new relationship, in and of itself, being a sufficient basis to terminate or modify alimony has been rejected.

And yet, the statute places the threeeconomic factors attendant to a cohabitation analysison equal footing to the three non-economic factors (excluding the seventh catchall provision). Moreover, the statute states that a court shall “consider” each of the factors. There is no requirement that the economic factors be established before a court could terminate alimony.

Pursuant to Konzelman and Reese, supra, the non-economic factors were previously relevant to inform the inquiry of whether the relationship provided an economic benefit to the supported spouse. This standard makes perfect sense, as cohabitation, at its core, is simply a changed circumstancesargument—and changed circumstances always focuses on the impact the change has had on the finances of one or both of the spouses.

However, under the new statute, would the existence of these non-economic factors alone be a sufficient basis to terminate alimony, even if it was conceded there was no economic benefit to the supported spouse as a result of the new relationship? If so, does that not codify the terms of the type of agreement addressed in Konzelman, supra? How many factors must be met before a court has a sufficient basis to terminate alimony, and which are the most important to establish ? Also unknown is whether the statute modifies the burden of proof standard established in Ozolins, supra. Finally, the statute appears to identify only two consequences to cohabitation—termination or suspension of alimony—instead of the fact-sensitive analysis set forth in the prior case law, in which alimony may be modified or terminated depending upon the degree of the economic support provided by or to the cohabitant.

The language of the statute appears to place on its head the careful development of case law over the years, emphasizing the preeminent importance of the financial import of the new relationship over conduct. To date, no decision, reported or unreported, has analyzed the statute.

A case pending in the Morris County Superior Court, Kloehn v. Kloehn, has engendered interest, as it may be the first cohabitation case to be decided under the statute. In that case, the husband pay or has argued that he is entitled to terminate alimony to his ex-wife because she has a boyfriend, harkening back to the arguments made 40 years ago, in the very first cohabitation cases.42

Even more recent was the Supreme Court decision of Quinn v. Quinn, which held that a trial court may not fashion its own remedy of suspension of alimony upon a finding of cohabitation, when a settlement agreement provided that alimony shall terminate upon cohabitation—even if the cohabitation relationship subsequently ended.43 However, this case did not involve an application or interpretation of the revised alimony statute. How the terms of this statute will be applied, and the impact it will have on legal practice, remains to be seen.

Cassie Murphy is an attorney at the Law Offices of Paone, Zaleski, Brown & Murray, with offices in Red Bank and Woodbridge.

Endnotes

. N.J.S.A. 2A:34-23(n).

  1. See, e.g.Edelman v. Edelman, 124 N.J. Super. 198 (Ch. Div. 1973); Grossman v. Grossman, 128 N.J. Super. 193 (Ch. Div. 1974); Garlinger v. Garlinger, 137 N.J. Super. 56 (App. Div. 1975); Wertlake v. Wertlake, 137 N.J. Super. 476 (App. Div. 1975); Eames v. Eames, 153 N.J. Super. 99 (Ch. Div. 1976).
  2. See, e.g.Grossman, supra note 2, at 195 (citing Suozzo v. Suozzo, 16 N.J. Misc. 475 (Ch. Div. 1938)).
  3. Garlinger, supra note 2, at 62 (citingSuozzo, supra note 3, at 478).
  4. Edelman, supra note 2, at 200.
  5. Id.
  6. Grossman v. Grossman, 128 N.J. Super. 193 (Ch. Div. 1974).
  7. Id. at 195.
  8. Id. at 194.
  9. Id. at 195-96 (citing Suozzo v. Suozzo, 16 N.J. Misc. 475 (Ch. Div. 1938)).
  10. Id. at 196.
  11. Id. at 196-97.
  12. Id. at 197.
  13. Garlinger v. Garlinger, 137 N.J. Super. 56 (App. Div. 1975).
  14. Garlinger v. Garlinger, 129 N.J. Super. 37, 40 (Ch. Div. 1974).
  15. Garlinger, supra note 14, at 64.
  16. Id. at 61-62.
  17. Wertlake v. Wertlake, 137 N.J. Super. 476 (App. Div. 1975); Eames v. Eames, 153 N.J. Super. 99 (Ch. Div. 1976).
  18. Wertlake, supra note 18, at 486-87.
  19. Eames, supra note 18, at 107.
  20. 92 N.J. 149 (1983).
  21. Id. at 150.
  22. Id.
  23. Id. at 151.
  24. Id. at 154.
  25. Id. at 150, 153-54.
  26. Id. at 155 (citing State v. Baker, 81 N.J. 99, 108 (1979)).
  27. Frantz v. Frantz, 256 N.J. Super. 90, 92-93 (Ch. Div. 1992).
  28. Ozolins v. Ozolins, 308 N.J. Super. 243, 245 (App. Div. 1998).
  29. Boardman v. Boardman, 314 N.J. Super. 340, 347 (App. Div. 1998).
  30. 335 N.J. Super. 638 (Ch. Div. 2000).
  31. Id. at 641-42.
  32. Id. at 646.
  33. Konzelman v. Konzelman, 158 N.J. 185, 191, 196 (1999). More specifically, the Supreme Court held:

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Where the court considers a motion for reduction of alimony based on a change of circumstances, the dependent spouse’s finances and economic resources are ordinarily the court’s only consideration. Nevertheless, a specific consensual agreement between the parties to terminate or reduce alimony based on a predetermined change of circumstances does not require an inquiry into the financial circumstances or economic status of the dependent spouse so long as the provision itself is fair. Thus, where the parties have agreed that cohabitation will constitute a material changed circumstance, and that agreement has been judged fair and equitable, the court should defer to the arrangements undertaken by the parties. In that situation where the dependent spouse has entered into a new marriage-like relationship, the court need not delve into the economic needs of the dependent former spouse.

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Id. at 197 (internal citations omitted).

  1. Id. at 196.
  2. Id. at 202.
  3. Id.
  4. 430 N.J. Super. 552 (App. Div. 2013).
  5. Id. at 576-77.
  6. Id. at 581.
  7. Id. at 582.
  8. Ben Horowitz, “When can ex-husband cut off alimony to former wife who has boyfriend?”, nj.com, Jan. 27, 2016, http://www.nj.com/morris/index.ssf/2016/01/ex-husband_seeks_to_terminate_alimony_to_ex-wife_w.html.
  9. Quinn v. Quinn, ___ N.J. ___ (2016). Notable is Justice Albin’s dissent, which states,

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An ex-husband should not be empowered through a property settlement agreement to threaten his ex-wife with the termination of her alimony if she cohabits with another person, when the living arrangement does not change her financial circumstances. Anti-cohabitation clauses unrelated to the economic standing of an ex-spouse should be contrary to public policy because they serve no purpose other than as instruments of oppression.

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Id. at 30 (Albin, J., dissenting).