While we await guidance from the Appellate Division on how to interpret that portion of the amended alimony statute’s cohabitation provision, N.J.S.A. 2A:32-23n, indicating that alimony may be “suspended or terminated” in the event of a payee former spouse’s cohabitation, and whether the pre-statute “economic benefits” test remains alive and well, we are seeing newer cases that address the issue of cohabitation under the statute, rather than under pre-statute case law.
In Gille, Jr. v. Gille, an unpublished decision from the Appellate Division released in January, the Appellate Division affirmed the trial court’s Order denying the payor former spouse’s motion to terminate alimony to his former wife based on her cohabitation. There, wife was receiving $130,000 in base alimony, subject to an upward adjustment based on whether the husband’s annual income exceeded $500,000 annually.
As to cohabitation, the parties settlement agreement provided that cohabitation would be a basis for modification or termination of the alimony obligation, “governed by the existing law at the time the application is made.”
During a 90-day period from February 9, 2015 to April 4, 2015, the husband paid a private detective to observe the wife’s home. The detective recorded his observations over 29 days. On 13 of those occasions, the wife’s boyfriend was present overnight. He was also observed retrieving mail, assisting with snow removal, and entering the home when the wife or children were not present. Immediately prior to oral argument on the motion, the husband had not obtained an update of the detective’s report immediately prior to filing his motion.
In denying the husband’s motion to terminate alimony, the trial court made the following findings:
Wife and boyfriend had no intertwined finances, did not share living expenses, and although they were dating, they did not even refer to themselves in conversation as “boyfriend and girlfriend.” Also, the court found that instances of the boyfriend helping around the home were limited instances of “chivalry” – not the performance of household chores on a continuous basis. It was ultimately deemed a dating relationship, but “nothing more.”
In analyzing the statutory cohabitation factors on appeal, the Appellate Division deferred to the trial court’s findings that the husband’s evidence did not meet the statutory elements required for him to fulfill his initial (prima facie) burden that would entitle him to relief and/or a future hearing to determine what, if anything, should happen to alimony. In so affirming, the Appellate Division noted how the husband only managed to demonstrate that the boyfriend spent a limited number of nights at the wife’s home.
Since the husband failed to fulfill even his initial burden based on his limited proofs, the court did not need to address “suspend or terminate” language, or the question of whether the economic benefits test still applies. Notably, the trial judge also made no mention of the fact that the new statute does not require the cohabitant to live full-time with the payee in order for cohabitation to exist. These cases are always highly fact-sensitive and could depend, in part, on the judge deciding the issue. To that end, the Appellate Division interestingly noted how the same trial judge had previously presided over post-Judgment litigation where the husband had engaged in misconduct with respect to his income, the disclosure thereof to the wife, and, in connection therewith, any upward adjustment of alimony.
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Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey. He can be reached at (973) 994-7526, or repstein@foxrothschild.com.
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