The purpose of this article is to discuss New Jersey Courts’ definitions of cohabitation when the issue has not been addressed in the parties’ Property Settlement Agreement.
In 1999, in the matter of Konzelman v. Konzelman, the New Jersey Supreme Court held that when the issue of cohabitation arises, our Courts should determine whether a dependent spouse has “entered into a new marriage – like relationship”. Such relationship would be more than “a mere romantic, casual or social relationship”. The Supreme Court stated that more is required “than a common residence, although that is an important factor”.
“Cohabitation involves an intimate relationship in which the couple has
undertaken duties and privileges that are commonly associated with marriage.
These can include, but are not limited to, living together, intertwined finances
such as joint bank accounts, sharing living expenses and household chores,
and recognition of the relationship in the couple’s social and family circle.”
Since the Konzelman case was decided, there has been much litigation over whether an intimate relationship with one or more of the Konzelman considerations have been proven and what should be the effect on the alimony obligation if cohabitation is proven. As to the determination of whether cohabitation has been proven, it is clear that under present New Jersey law, cohabitation cases are extremely fact sensitive. Often, proofs of cohabitation will include a detailed and thorough report from a private investigator. However, the report of a private investigator alone is likely insufficient. In addition to the cohabitation, it is necessary to show that the relationship involves other qualities comparable to a “marriage-like relationship” over a prolonged period of time.
Further, once cohabitation is proven, in order to terminate or modify alimony, the Court must consider whether there has been a sufficient change in the alimony recipient’s financial circumstances to warrant termination or modification of alimony. Under present law, even if there is cohabitation in a marriage-like relationship, if the cohabitation does not substantially alter the recipient’s economic dependency on the alimony payor, the alimony may not be modified at all.
I have previously written on the issue of alimony reform in New Jersey (Will the New Year Bring Reform to New Jersey’s Alimony Laws). In that article, I discussed some of the provisions of a pending Bill, known as Assembly Bill No. 3909. Assembly Bill No. 3909 provides for the Court’s authority to modify, suspend or terminate alimony when the payor spouse shows that the payee has maintained a cohabitation relationship for a continuous period of at least three months. The Bill further provides that alimony may be subject to modification if the cohabitation relationship is characterized by stability, permanency and mutual interdependence, and if the economic benefit inuring to the payee is sufficiently material to constitute a change in circumstances. In determining whether to modify, suspend or terminate alimony, the Bill requires the Court to consider whether the cohabitants have intertwined finances including, but not limited to, a joint bank account; whether they same living expenses and household chores; and any other relevant and material factors.
Accordingly, although the alimony reform movement may provide the Courts with somewhat more specific guidance when faced with applications to adjust alimony obligations upon proof of cohabitation over a time period of three months or more, there is not a substantial change in the law in what is required once cohabitation is proven. Clearly, proofs of a marriage-like relationship will remain necessary and proofs of a material change of circumstances will still be required before a Court can modify an alimony award based on cohabitation.