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Can I Modify/Terminate Alimony Payments on Basis of Cohabitation in NJ

By Snyder Sarno D'Aniello Maceri & da Costa LLC on January 15, 2018


When a marital settlement agreement (MSA) stipulates that the dependent spouse’s cohabitation is a basis for modification or termination of alimony, the court must abide by the agreement and interpret the provision as the parties intended.  Gille v. Gille, a recent case out of the Appellate Division, addresses this issue in the context of a MSA.         

In Gille, the ex-husband (plaintiff) appealed from an order denying his request to terminate his alimony obligation to his ex-wife (defendant) on the grounds that she was allegedly cohabitating.  The parties had four sons and were divorced in September 2011.

A post-judgment order in April 2015 indicated that defendant received baseline alimony of $135,000 per year with a requirement for upward modification had plaintiff’s income exceeded $500,000 annually.  Plaintiff earned $758,971 in 2013 and his income also exceeded $3 million for a few years.  Much of the post-judgment litigation concerned plaintiff’s alleged failure to provide defendant with his financial records each year as agreed upon in their MSA for purposes of upward modification of his alimony and child support payments.

To determine whether defendant was cohabitating with another man, plaintiff hired a private detective to watch her home.  Defendant’s boyfriend was seen staying overnights, getting the mail and helping the parties’ children shovel snow from the driveway.  The boyfriend was also seen in the home when neither defendant nor the children were present.

On the cohabitation issue, the judge restated the MSA provision that provided that cohabitation would be grounds for modification or termination of plaintiff’s alimony obligation.  However, the judge did not find that defendant was cohabiting because she and her boyfriend did not intermingle their finances, did not share living expenses, and did not hold themselves out as a couple.  The judge also found insignificant the investigators’ documented instances of defendant’s boyfriend at her house because they are “very limited” and constituted “instances of ‘chivalry.’”    

On plaintiff’s appeal, the Appellate Division affirmed, holding that plaintiff did not make a prima facie showing that defendant’s alleged cohabitation represented changed circumstances warranting a modification of his alimony obligation.  The Appellate Division reiterated the definition of cohabitation as provided in N.J.S.A. 2A:34-23, which states that “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.”

In affirming the trial judge, the Appellate Division also listed the factors to be assessed when determining whether cohabitation occurred.  The factors include: (1) intertwined finances such as joint bank accounts; (2) sharing or joint responsibility of 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 of household chores; (6) whether the recipient of alimony has received an enforceable promise of support; and (7) all other relevant evidence.

The Appellate Division also found that the trial judge properly interpreted the language of the parties’ MSA, which referred the trial judge back to the statute and factors listed above.  The Appellate Division agreed with the trial judge’s analysis that, of the statutory factors, plaintiff only showed that defendant’s boyfriend spent a limited number of nights in the home.  Lastly, the Appellate Division emphasized the large disparity in income between the parties, with plaintiff earning nearly five times that of defendant’s only source of income in the form of alimony.                   

If you have any questions regarding modification or termination of alimony based on cohabitation, please contact the skilled matrimonial attorneys at Snyder Sarno D’Aniello Maceri & da Costa LLC. Call us today at (973) 274-5200.                                                   

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