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Alimony: Assessing the Burden of Demonstrating Changed Circumstances and Cohabitation

If you have gone through a divorce and are paying alimony, you likely know that your support obligation can be modified or even terminated upon a showing of “changed circumstances.” While changed circumstances could apply to a number of situations, one common example that has long been a basis to modify or terminate alimony is an ex-spouse’s cohabitation with another individual. According to New Jersey Statute 2A:34-23(n), which was enacted in 2014, “[c]ohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage…but does not necessarily maintain a single common household.” The statute goes on to list the seven factors courts should look to when determining if cohabitation is indeed taking place:

  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; and
  7. All other relevant evidence.

It is well established in New Jersey that the burden rests with the party seeking to terminate alimony to prove that changed circumstances, in this case an ex-spouse’s cohabitation, have occurred such that a support obligation should be terminated. Before support is terminated though, the moving party must first make what is known as a prima facie showing of changed circumstances. This means that the evidence provided by the moving party, if unrebutted, would sustain a judgment in their favor. Simply put, the party looking to terminate alimony needs to provide enough proof on the seven outlined factors above, that if unrebutted by your ex-spouse, would be enough to terminate your alimony. Only then will a court order a plenary hearing, or a mini-trial, on the issue of cohabitation and termination of alimony, in which both sides can make their arguments, present their evidence, and proffer testimony from witnesses before the court makes their ultimate decision.

You may be wondering how to go about proving these factors, since many of them seem to require intimate knowledge of your ex-spouse’s finances and personal life. During the course of a trial or plenary hearing, this query would be answered by discovery, which allows both parties to seek and obtain financial and other relevant documents, as well as answers to various questions posed by your attorney. However, a recent Appellate Division ruling has reinforced barriers making an already difficult obstacle in the path towards termination of alimony even more difficult. A recent New Jersey Appellate Division case has shed some light on to when it is and is not appropriate to order discovery in cohabitation cases, and it’s ruling has further cemented the burden and bar that support-paying spouses must overcome to terminate their alimony obligations.

The Landau v. Landau Case – Establishing that a Moving Party Must Establish the Existence of a Prima Facie Case of Cohabitation

The case of Landau v. Landau was decided by the Appellate Division in September of 2019. It dealt with an ex-husband’s application to terminate his support paid to his ex-wife, based on an alleged cohabitation with a man she had allegedly been seeing for over a year. At the trial court level, the ex-husband presented evidence that the ex-wife and boyfriend had travelled together, attended social activities as a couple, including the parties’ child’s bar mitzvah, and regularly slept over together at the ex-wife’s home. The ex-wife, while admitting that the alleged cohabiter was her boyfriend and that they did travel together, rejected and opposed the idea that she was cohabitating or that her relationship was tantamount to marriage, and claimed that her ex-husband had not met his burden to warrant any further action on the part of the court.

The trial court, after hearing arguments from both sides, ruled that while it could not conclude based on the evidence provided that a prima facie case had been made, the husband had provided “a sufficient showing to warrant limited discovery concerning the existence of a prima facie cohabitation relationship.” Essentially, the trial judge ordered discovery in the case, in order to help the husband better prove the factors listed in N.J.S.A. 2A:34-23(n) and thus make his prima facie showing easier to achieve, before ordering a Plenary Hearing.

The ex-wife appealed this ruling, arguing that the trial court had sidestepped the well-established burden that the ex-husband had to meet before granting discovery and a plenary hearing. In response, the ex-husband argued that the language in the revised alimony statute would be meaningless if a prima facie case of cohabitation had to be demonstrated before ordering any type of discovery.

In their decision, the Appellate Division held that the Family Court’s jurisdiction to modify support orders on a basis of changed circumstances long pre-dates the updated 2014 statute and even the case of Lepis v. Lepis, the often cited case which details the changed circumstance procedure and framework, and 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.” The Appellate Division found that nothing in the revised alimony statute, enacted in 2014, limited or otherwise edited the basis for the Family Court to modify support or the long-followed holding of Lepis. The Appellate Division ultimately reversed the decision of the trial court, holding that a prima facie case, no matter how difficult it may be to establish, is required before any discovery is ordered. The court specifically recognized that the burden the moving party must meet is steep, but reasoned that this lofty burden is not new, has not been modified by the 2014 amended statute, and does not justify the invasion of the privacy and finances of the spouse receiving support, absent a prima facie showing.

Lasting Impacts of Landau v. Landau

So, what is the lasting impact of this decision? How can a support-paying spouse be expected to demonstrate changed circumstances without access to financial documents of the other party or other information related to their personal life? The answer to this question remains the same as before this decision was issued: the moving party must demonstrate, based on evidence they have access to, and with no help or aid of discovery from the other party, that a prima facie case of cohabitation exists. All Landau did was reiterate and solidify the prior rule: that no matter how difficult it may seem, the moving party bears the burden of demonstrating a prima facie case of changed circumstances, in this case, cohabitation, before the court can order discovery to better support their claim.

Just as in pre-Landau times, typical methods of evidence may include, among other types of evidence, a comprehensive private investigator’s report tracking the spouse receiving support and the time spent with the alleged cohabiter, social media posts related to the new relationship, or sworn certification from individuals with relevant information about the relationship.

While there remains a high burden to clear, remember that there are seven factors found in N.J.S.A. 2A:34-23(n) that a court must consider in determining if a prima facie case of cohabitation has been made. Depending on the circumstances surrounding your case and the evidence that can be provided, each factor may be provided a different weight than another.

Have Alimony Questions?

Have questions as to whether you may be able to terminate your alimony obligation based on cohabitation? Are you worried that your ex-spouse may attempt to terminate your alimony because you have started dating again? Contact one of our experienced divorce attorneys at Skoloff & Wolfe to discuss your situation today at (973) 992-0900.

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