John P. Paone, Jr., Esq. and Cassie Murphy, Esq., partners with the Law Offices of Paone, Zaleski & Murphy, co-wrote “Cohabitation Under New Jersey Law: A Special Relationship, ” which article was recently published in the New Jersey Law Journal. This article informs family law practitioners on how termination of alimony cases based on cohabitation can be won upon a showing of facts which, when combined, speak to a relationship of stability, permanency and mutual interdependence.
FORMAL CITATION: J. Paone, C. Murphy, “Cohabitation Under NJ Law: A Special Relationship,” 227 N.J.L.J. 27 (July 5, 2021) p.42.
Analysis
Cohabitation Under N.J.S.A. 2A:24-23n: A Special Relationship
By: John P. Paone, Jr., Esq. & Cassie Murphy, Esq.
Terminating alimony or the denial of a claim for alimony based on cohabitation by the payee has always been a problematic area of the law. Payees attempting to perpetuate alimony often simply avoid remarriage and carry on a serious relationship with a cohabitant while conducting themselves in a manner so as to skirt the legal definition of cohabitation. Recognizing this issue, in 2014, the New Jersey Legislature enacted N.J.S.A. 2A:24-23n, which broadens the legal definition of cohabitation. Unfortunately, not one reported case has been issued on the question of exactly what constitutes cohabitation under the new statute since its enactment. While there have been attempts to address what constitutes a prima facie case necessary to obtain discovery from an alleged cohabitant or payee, the bar continues to await the Court to weigh in on what must be established at final hearing to prove cohabitation. See Landau v. Landau, 461 N.J. Super. 107 (App. Div. 2019); Temple v. Temple, A-0293-20 (App. Div. 2021). Despite a lack of case law, we believe there is a road map for establishing cohabitation under the new statute.
Recently, we represented the payor spouse in an eight-day Arbitration divorce trial via Zoom. Our case concerned a marriage of 19 years duration where we petitioned for the denial of alimony based on the payee spouse’s pendente lite cohabitation. Our success in having alimony terminated has reinforced our belief that in establishing cohabitation practitioners need to show a “special relationship” between the payee and the cohabitant.
N.J.S.A. 2A:34-23n, which became effective on September 10, 2014, provides in relevant part:
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:
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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.
While the statute largely codifies factors developed for addressing cohabitation in the pre-statute era, under the new law, cohabitation does not require a payee and cohabitant to live together on a full time basis. Furthermore, the factor of economic benefit or a financial nexus between the cohabitant and the alimony payee, ushered in with Gayet v. Gayet, 92 N.J. 149 (1983), is no longer a sine qua non of cohabitation.
From our perspective, notwithstanding the new statute, trial courts appear mired with applications focusing on the financial nexus between the parties and the extent to which parties shared overnights together. However, debating over how many overnights per week or the degree of a financial connection that is needed to constitute cohabitation misses the mark and fails to distinguish a mere dating relationship from something more profound. We believe that the statute invites a new and deeply factual analysis in order to establish cohabitation. In that regard, concentrating solely on sensational factors (e.g. “the parties spent X overnights together” or “who paid for this meal or that vacation”) often ignores the proofs that reflect the fullness of the relationship between the payee and cohabitant.
Painting the portrait of a special relationship is not easy. It requires exploration of what could be viewed as tedious elements of a relationship – which only taken in the aggregate will prove to be meaningful. Cohabitation cases can be won despite the payee and cohabitant not living together full-time. Cohabitation cases can be won despite the payee and the cohabitant not overtly comingling finances. Cohabitation cases can be won upon a showing of facts which, when combined, speak to a relationship of stability, permanency and mutual interdependence.
In our view, practitioners should eschew focusing exclusively on certain sensational aspects of the relationship between the payee and the cohabitant at the cost of ignoring the more “mundane” details that establish a serious bond between two people. These mundane details become the mosaic which distinguishes a mere dating relationship from a “mutually supportive, intimate personal relationship” as referenced in the statute. To win the issue of cohabitation, attorneys must be prepared to do a deep dive into the life of two people in order to establish a special relationship. Such a presentation will allow the trier of fact to conclude, as stated by Justice Potter Stewart in the now infamous obscenity case Jacobellis v. Ohio, 378 U.S. 184 (1964), “I shall not today attempt to define (it)… But I know it when I see it.”
Even when parties do not live together or comingle their finances, there are ways to methodically assemble a series of smaller factual circumstances which – taken together – can prove a special relationship. While no fixed exhaustive list of factors can be made, we close by offering a broad range of facts that our experience suggests can be hallmarks of a special relationship.
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The payee admits to a mutually supportive relationship with the cohabitant.
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The payee admits to an intimate personal relationship with the cohabitant.
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The payee has been in a dating relationship with the cohabitant for an extended period of time.
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The payee’s relationship with the cohabitant is her longest romantic relationship, aside from the payee’s relationship with the payor.
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The payee has continued the relationship with the cohabitant pendente lite, notwithstanding the fact that the payor has been seeking to terminate alimony based upon the relationship between payee and the cohabitant.
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The payee is able to identify the cohabitant’s birthday. The payee and the cohabitant acknowledge each other’s birthdays. The payee and the cohabitant celebrate birthdays together.
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The payee knows the cohabitant’s family members, and has hosted them in the payee’s home.
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The payee knows the cohabitant’s roommate.
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The payee has discussed child custody issues with the cohabitant.
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The payee has discussed financial issues with the cohabitant.
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The cohabitant accompanied the payee at a meeting with the payee’s matrimonial lawyer.
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The payee and the cohabitant have shared interests (whether it be sports, entertainment, leisure, etc.) and they pursue those shared interests together.
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The cohabitant is a protector for the payee. The cohabitant accompanies the payee at the drop off or pick up of the children with the payor. The cohabitant is also present at the payee’s home when others visit the home.
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The payee allows the cohabitant to drive the payee’s vehicles.
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The payee trusts the cohabitant.
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The payee gives the cohabitant liberal access to the payee’s unemancipated children. The payee allows the cohabitant to spend time alone with the children. The payee is comfortable with the cohabitant being in the presence of other people’s children who the payee brings into the payee’s home.
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The payee places the cohabitant’s name as a contact for the children with schools, healthcare providers, sports teams, etc.
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The payee gives the cohabitant access to the payee’s residence when the payee is not present.
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The payee gives the cohabitant the alarm code to the payee’s home. The payee gives the cohabitant the garage code. The cohabitant has a set of keys to the payee’s home.
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The payee admits to taking advice from the cohabitant and considers the cohabitant to be a “sounding board.”
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The cohabitant and the payee say “I love you” to each other.
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The payee and the cohabitant celebrate holidays together.
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The cohabitant is supportive in raising the children.
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The cohabitant transports the children and takes them to their activities.
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The cohabitant stays in touch with the children via text messages and FaceTime.
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The cohabitant accompanies the payee and the children to leisure activities and restaurants.
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The cohabitant has met service providers on the payee’s behalf at the payee’s home, when the payee was not present.
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The cohabitant has signed for mail/deliveries at the payee’s home.
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The payee’s social and family circle know about the cohabitant. The payee is not hiding the relationship with the cohabitant or keeping it a secret from anyone.
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The payee has introduced the cohabitant to the payee’s parents. The payee and the cohabitant have stayed in the payee’s parents’ home, and have slept in the same bed during their stay.
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The payee has introduced the cohabitant to the payee’s best friends, and they have all dined together on more than one occasion.
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The cohabitant was present when the payee threw parties and various events at the payee’s home.
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The cohabitant was present at the payee’s child’s graduation party.
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The cohabitant has been introduced to the payee’s relatives.
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The payee’s relatives all know the payee is in a relationship with the cohabitant.
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The cohabitant sleeps with the payee in the payee’s bedroom when the payee’s children are in the home.
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The cohabitant and the payee have spent holidays together, including Thanksgiving and Christmas.
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The cohabitant has been present in the payee’s home when the payee’s children were opening their Christmas presents.
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The payee admits to seeing the cohabitant in person “very often.” They eat meals together, have overnights together, and go on vacations together.
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The cohabitant takes showers at the payee’s home and keeps razor blades, deodorant, and miscellaneous personal effects there.
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The cohabitant parks a vehicle in the payee’s garage.
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The payee has been to the cohabitant’s apartment and place of employment.
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The cohabitant has blown leaves and removed snow at the payee’s home.
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The cohabitant and the payee go food shopping together. The cohabitant helps the payee to bring groceries into the payee’s home.
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The cohabitant has taken the payee’s vehicle for regular service and repairs.
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The cohabitant assisted the payee in cleaning the payee’s vacation home.
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The cohabitant brings his dog to the payee’s home.
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The cohabitant and the payee have matching or correlating tattoos identifying their relationship.
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The cohabitant has done banking for the payee.
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The cohabitant has repaired, fixed, and/or reprogrammed the payee’s computer, cable, and/or entertainment system.
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The cohabitant has taken out the garbage at the payee’s home.
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The cohabitant and the payee have discussed marriage.
