In the last year, the courts have examined several cases regarding cohabitation. As you might guess in each of these situations, the issue had everything to do with an application for relief from an alimony obligation. Just last week, the New Jersey Appellate Division ruled on a new case on whether support payments should stop because the recipient was allegedly cohabitating with someone else.
In May of 2019, the court wrote an unpublished decision in Wood v. Wood. The husband, in that case, felt his wife’s cohabitation represented a change in circumstances. Ultimately, the judge decided there was insufficient evidence regarding the claim.
According to the statute, a great deal goes into proving cohabitation as a change in circumstances. Although Mr. Woods retained a private investigator, he failed to sufficiently prove his former wife was cohabitating with her boyfriend.
A month later, the New Jersey Appellate Division considered the matter of M.M. v. J.V. The court used initials to protect the names of the parties. Once again, the application involved whether the wife’s cohabitation warranted relief from her former husband’s alimony obligation.
While some might find it hard to believe that the court still didn’t allow for a change in alimony payments, in this case, the New Jersey Appellate Division agreed with the trial court’s ruling.
In the M.M. v. J.V. matter, the court found that J.V. submitted a prima facie case of changed circumstances on cohabitation. As it turns out, this part of the ruling has a familiar ring. It has a great deal to do with the most recent decision published by the New Jersey Appellate Division.
No Prima Facie Case of Cohabitation
The New Jersey Appellate Division approved Landau v. Landau for publication on September 12, 2019. According to past case law, suspension or termination of alimony based on cohabitation required proof of a change in circumstances. The 1980 Lepis v. Lepis case states that “[a] prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse’s financial status.”
That said, alimony laws changed in 2014. While some might question whether the change altered the requirements, the Appellate Division decided that the court could only order discovery after prima facie showing of changed circumstances.
The case contains a brief history of the conclusion of a high net income divorce. After nearly eleven years of marriage, David Scott Landau and Stacy Landau divorced in 2014. The court incorporated their marital settlement agreement (MSA) into their divorce decree.
Among other things, the MSA included a provision for limited duration term alimony. For starters, David agreed to pay $44,000 per month for the first three months. The amount decreased to $40,000 monthly until March 2022.
The MSA addressed other provisions regarding modification or termination of the alimony payments. Included was language that said, “[n]otwithstanding anything contained herein to the contrary, the Wife’s cohabitation as defined by then current statutory and case law shall be a basis for the Husband to file an application seeking a review and potential modification, suspension or termination of alimony pursuant to New Jersey law.”
Husband Moved to Terminate, Suspend or Modify Alimony
More than three years after the couple divorced, David filed papers with the court seeking to terminate, suspend, or modify his alimony obligation. He based his application on Stacy’s cohabitation with a man he alleged his ex-wife had been seeing for over a year.
As part of his motion papers, David certified to various circumstances that he felt demonstrated that Stacy was cohabitating with another man. Some of the claims involved:
- Stacy traveled with the other man
- The two attended social activities as a couple
- Stacy and the man slept over each other’s houses
- The man sat in a place of honor at one of the sons’ Bar Mitzvah party
- Stacy acknowledged her relationship with the man in a speech
When confronted with David’s court application, Stacy admitted that she had a boyfriend. However, she denied that her relationship rose to the level of cohabitation – or “tantamount to marriage.”
According to Stacy, the two did not intertwine their finances, did not share living expenses and also did not have authority over one another’s children. Also, Stacy and her boyfriend even took separate family vacations. Additionally, Stacy disputed other allegations that suggested she and her boyfriend cohabitated.
The trial court judge acknowledged that it was his obligation to decide whether there was a prima facie case, but then went on to say that he would allow discovery so that David would have “the opportunity to make a showing of a prima facie case, or not.”
At the same time, the lower court also made it known that David’s proofs could be consistent with either a dating relationship or one involving cohabitation.
Discovery Despite No Findings
In the meantime, it comes down to something a little different than expected. The trial court allowed limited discovery without a showing of the cohabitation. In a certain sense, it appeared that the judge permitted David to use the discovery to prove his prima facie case.
Some might say that the ruling put things in the wrong order. After all, depositions and interrogatories should only occur if there is a finding of a prima facie case. As it stands, the discovery isn’t designed to prove one exists.
In the end, the Appellate Division decided that David had not made a prima facie case of the changed circumstances of Stacy’s cohabitation. Therefore, he was not entitled to look into her finances or use discovery to make his case.
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