Hard to Believe This Wasn’t Actually Cohabitation?

Court-ordered to pay alimony to a former spouse? You may be looking for some sort of relief. Proving cohabitation seems like an obvious means of suspending or terminating alimony altogether. However, you might not be the first litigant that has a different opinion than the judge.

Truth be told, New Jersey courts regularly face post-judgment applications alleging cohabitation. However, it’s not as easy as it sounds. In fact, the law requires rather compelling evidence when it comes to modifying spousal support payments.

Last month, the New Jersey Appellate Division considered a case where a  husband who attempted to terminate alimony obligations. The court found insufficient proofs on the issue of cohabitation as a reason to modify or end the payments.

Just three weeks later, the New Jersey Appellate Division considered yet another case regarding a request to suspend or terminate alimony based on the cohabitation of the recipient and her boyfriend. Once again, the court disagreed that the submitted evidence warranted a change.

Court Findings on Evidence Regarding Cohabitation

The court marked its opinion in  M.M. v. J.V.  as an unpublished decision. Although it does not act as legal precedent, it has value. At the very least, it applies to the parties. As you may note, the court elected to mask the litigants’ identities with initials for confidentiality reasons.

M. M. and J.V. married in 1996 and separated in 2008. For whatever reason, their divorce didn’t finalize until February 2013. Their son, J.V. (referred to as John in the decision) was born in 2005. According to the case history, the Dual Judgment of Divorce (DJOD) included a provision requiring J.V. to pay his former wife alimony for five years in the amount of $500 monthly.

In the meantime, it appears that M.M. began a romantic relationship with someone else two years before the conclusion of the marital dissolution. She and Pat became parents to a daughter referred to as A.H. (Anne), who was born in 2013. Both of the plaintiff’s children live with her. After Anne’s birth, Pat started to spend considerable time at M.M.’s home.

The record indicates that the defendant learned of M.M.’s relationship with Pat through rumors. He also learned of her pregnancy in the same manner. That said, he waited a couple of years to hire a private investigator to substantiate the fact that M.M. cohabitated with Pat.

During the summer months of 2016, the PI surveilled the plaintiff and took nearly 300,000 pictures of her and/or Pat. The defendant submitted the photographs in conjunction with a court application to suspend or terminate alimony.

Prima Facie Case of Changed Circumstances

In reviewing the documentation J.V. presented, the court found the defendant submitted a prima facie case of changed circumstances based on cohabitation. This called for an exchange of discovery and a plenary hearing.

During the hearing, the judge listened to testimony from the key witnesses. The private investigator provided the following information regarding his surveillance of the plaintiff and submitted the following information about his observations concerning Pat:

  • He drove John to school in the morning
  • Pat came into and exited the plaintiff’s home freely
  • He walked around the backyard without a shirt and barbequed at the house
  • Pat took care of the outside chores
  • Both M.M. and Pat entertained guests together
  • Pat’s car parked overnight at the plaintiff’s home on almost a daily basis

In addition to the private investigator, J.V. also employed the services of a cellphone expert. Pat used his cellphone from the following locations:

  • 48% of usage originated from Pat’s place of employment
  • 29% of the times, Pat used the cellphone from the plaintiff’s address
  • 3% of the usage came from the home of Pat’s parents
  • Various locations accounted for the balance of the phone calls

Meanwhile, M.M. testified to disprove allegations of cohabitation. For one, she did not share financial obligations or accounts with Pat. In fact, she rented her home from her parents and was solely responsible for paying the monthly fee.

According to the plaintiff, she did household chores alone or with her father’s assistance. That said, M.M. admitted that Pat drove the children where they needed to be.

Court Finds Insufficient Evidence of Cohabitation

At the conclusion of the plenary hearing, the court found that the plaintiff and Pat lived together. At the very least, the arrangement amounted to “very very close to a full-time basis.” However, the judge expressed concerns about a tape recording made by the defendant prior to the hearing.

It seems that even though J.V. had information from a private investigator about Anne’s birth, he questioned his son. The court concluded that the “ defendant used that tape for one reason and one reason alone, and that was to use [it] in this litigation.”

The court expanded on other parts of the defendant’s investigation and his difficulty as a witness. Apparently, J.V. contacted his ex-wife’s gynecologist to ask questions. The defendant even brought Pat into court.

When it came to the issue of cohabitation, the court decided there was insufficient evidence to prove it. The defendant failed to prove that M.M. and Pat “co-mingled or intertwined financial obligations or that Pat contributed to plaintiff’s living expenses.” This is one of the factors considered when it comes to modification or termination of alimony based on cohabitation.

Most people think of cohabitation merely means couples living together. However, the statutory requirements are much more detailed. Cohabitation should more resemble marriage. The fact that the plaintiff and Pat had a child together did not equate to cohabitation.

In the end, the New Jersey Appellate Division agreed with the lower court’s ruling and affirmed its decision.

Contact Us

Whether you think your alimony obligations should end, or in jeopardy of losing them, we can help. Contact the Law Offices of Sam Stoia to set up a consultation to discuss your concerns.

Hard to Believe This Wasn’t Actually Cohabitation?

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