The amended alimony statute, N.J.S.A. 2A:34-23, was enacted on September 10, 2014, and we are now starting to see cases come down the appellate pipeline that give some guidance to the lower courts with respect to how the amended statute is to be interpreted. The recent unpublished case Robitzski v. Robitzski, addresses cohabitation.
According to the alimony statute N.J.S.A. 2A:34-23(l):
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.
The parties in Robitzski were divorced in 2004 and Mr. Robitzski agreed to pay his ex-wife permanent alimony of $30,000 per year. At the time of this application Ms. Robitzski had admittedly been carrying on a longstanding relationship with her significant other. In the event of her cohabitation, pursuant to their agreement, Mr. Robitzski’s obligation to pay alimony shall be modified or terminated pursuant to New Jersey statutes and case law.
Mr. Robitzski produced various Facebook posts showing his ex-wife and her boyfriend at family events and her children calling him "Pap Thom". Ms. Robitzski in turn provided proof that she only spends on average two overnights per week with her boyfriend, that her finances are not intertwined with him and that he does not share in household chores despite proof of him removing snow for Ms. Robitzski. Ultimately Mr. Robitzski failed to make a prima facie showing of cohabitation and his application was denied.
Of note however, the appellate court recognized that the amended alimony statute removes the modification of alimony as a remedy for cohabitation and instead provides for suspension or termination of alimony. The appellate court also commented that the ex-wife spending 100-110 overnights with her boyfriend did not constitute cohabitation. This is helpful to note as often times the payor of alimony is forced to hire a private investigator to determine the number of nights the recipient is spending with their new significant other.
Lastly, because the parties' agreement did not say whether the statutes and case law of 2004 or the current statutes and case law are to be applied upon a finding of cohabitation, the appellate court declined to opine as to what statutes and case law would apply. This leads to a practice tip: when drafting a settlement agreement, be sure to specify if the parties intend for the current law to apply or if the law at the time the issue comes to light should apply, in which case it might be a gamble for either party..
If you have any questions regarding alimony or the impact of the amended alimony statute on your case, please give me a call.