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Conflicting Positions In Cohabitation Cases Result In A Plenary Hearing

When applying to modify alimony, a party must file a post-judgment motion with the Court along with a Certification setting forth the facts of the case and the reasons for the modification request.  The other party may then file a Reply Certification setting forth their position.  Many times there are conflicting facts in these Certifications.
   

In the recent case of Auerbach v. Auerbach, the ex-Wife lived with her boyfriend for nine years before the ex-Husband filed to terminate alimony based on cohabitation.  He also requested reimbursement of the alimony paid over the past nine years, stating that he had just learned of the relationship.
   

The ex-Wife stated that the ex-Husband knew she had been cohabitating.  She continued to live in the former marital home since the divorce.  She attended family functions with her boyfriend that the ex-Husband also attended on multiple occasions, and the home answering machine contained the names of the ex-Wife and her boyfriend.
   

Another issue raised was that the Property Settlement Agreement did not state that alimony would terminate in the event of cohabitation.  The ex-Wife argued that she had waived permanent alimony and accepted limited duration alimony, as well as other waivers in exchange for keeping a cohabitation clause out of the agreement.  The Husband denied this.
   

These issues, in addition to whether there was an economic interdependence between the cohabitating spouse and her boyfriend, cannot be resolved by a Court on conflicting certifications.  Factual determinations, as well as credibility of the parties, must be made by the Court, and the only way a Court could do this, is through a plenary hearing – which is a trial on all of these issues.      

Full post as published by New Jersey Law Blog on March 04, 2009 (boomark / email).