In New Jersey, when two parties divorce and mutually agree to enter a martial settlement agreement (MSA) governing the terms of their divorce, deciding on an alimony figure and the grounds for its termination can be the most contentious part of the negotiation. However, once the terms with respect to the termination of alimony are clearly set forth in an agreement, the terms are generally enforceable if the court finds that the agreement was entered into knowingly and voluntarily. Quinn v. Quinn, 225 N.J. 34, 39 (App. Div. 2016).
Further, New Jersey’s alimony statute, N.J.S.A. 2A:34-23, was modified in September 2014 to include, among other provisions, subsection (n), which allows for the termination or suspension of alimony if the payee cohabits with another person. The statute defines cohabitation to involve “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.” The statute also specifies 7 factors a court must consider in deciding whether cohabitation has been demonstrated, as follows:
- Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
- Sharing or joint responsibility for living expenses;
- Recognition of the relationship in the couple’s social and family circle;
- Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;
- Sharing household chores;
- 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
- All other relevant evidence.
The Appellate Division recently dealt with this issue in an unpublished case, Wajda v. Wajda, in which the Appellate Division ultimately decided more discovery was needed regarding factors 1 and 2 above – that is, the sharing of finances.
In Wajda, the parties divorced in February 2018 with a MSA incorporated into their final judgment of divorce. The MSA required the ex-husband (Plaintiff) to pay his ex-wife (Defendant) limited duration alimony of $425 per week for 12 years. The MSA called for the termination of alimony if Defendant remarried or cohabitated with another person.
In December 2018, Plaintiff sought to terminate alimony based on Defendant’s alleged cohabitation. Attached to his motion was a 148-page report from a private investigator, which included several photographs of another man who stayed over Defendant’s home almost every night for 2 months.
Defendant conceded the report was valid, but argued she was merely in a dating relationship with another man and not cohabitating. In her opposition, she provided address and bank account information of her “boyfriend”, contending that he lived in New York. She further claimed that she had been hospitalized and her boyfriend was therefore staying with her more frequently.
The judge denied Plaintiff’s motion and held that he failed to make an adequate showing that Defendant was cohabitating to warrant termination of alimony. Defendant appealed and argued that the judge did not properly consider the evidence and failed to enforce the MSA as written.
The Appellate Division reversed and remanded for a plenary hearing to be conducted. Specifically, the Appellate Division stated that when parties, by voluntary agreement, outline circumstances that will terminate alimony upon cohabitation, they should generally be enforced even if cohabitation does not result in any changed financial circumstances.
Pointing to N.J.S.A. 2A:34-23, the Appellate Division found that the judge did not properly consider the cohabitation factors discussed above. The Appellate Division stated that cohabitation does not necessarily require that the parties “maintain a single common household.” Rather, it is only one important factor of many.
The Appellate Division found that the record showed the boyfriend was “purchasing items and transacting bank business in the same town where Defendant resided.” Additionally, the boyfriend resided in Defendant’s home even when she was not present and kept his dogs there.
While the Appellate Division did not decide whether Plaintiff made an adequate showing of cohabitation, he certainly warranted “further discovery” on the issue to determine whether Defendant and her boyfriend had intertwined their finances.
This case exemplifies the importance of demonstrating shared finances and the need to conduct proper discovery through counsel. If you have any questions regarding alimony and cohabitation, please contact the skilled matrimonial attorneys at Sarno da Costa D’Aniello Maceri LLC. Call us today at (973) 274-5200.
Cite: Wajda v. Wajda, 2020 N.J. Super. Unpub. LEXIS 740 (App. Div. 2020).
