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Cohabitation As Changed Circumstances For Modification Of Alimony

Cohabitation by the supported spouse is often raised as a reason to terminate alimony by the paying spouse.  Several decisions have been written by the Appellate Division in the past few months concerning cohabitation and how it effects alimony.  In the case of Olito v. Olito, decided in October of 2008, the parties had been divorced since 2004, and their Property Settlement Agreement stated 'Wife agrees and acknowledges that Husband's alimony obligation herein shall cease and terminate upon Wife's remarriage or Wife's cohabitation as per New Jersey Case law.'  In the Husband's post-judgment motion to terminate alimony, he asserted that his ex-wife was living with a female partner.  He claimed that they had undertaken a way of life as a committed couple.  The ex-Wife admitted that she rents a house with another woman; however, she denied any relationship, intimate or otherwise, and stated that their financial arrangement was to split rent.  The Appellate Court affirmed the Lower Court's holding that the ex-Husband did not meet his burden of proof on the cohabitation claim.  He simply stated that his ex-Wife's present living arrangement was cohabitation under New Jersey law. 
   

The Appellate Court went into much more detail in reviewing this issue.  It cited to previous case law which defines cohabitation as:

'more than merely a common residence or a sexual relationship.  We believe the ordinary definition of ‘cohabitation,' describing a relationship of living together ‘as man and wife,' connotes mutual assumption of the duties and obligations associated with marriage.  To guide trial courts in applying this definition, we have formulated a list of factors to consider in determining whether a relationship constitutes cohabitation.  We emphasize however that the list is non-exhaustive, and that no one factor serves as an absolute prerequisite for cohabitation.'
 

The factors that a Court should consider are:

1.     Establishment of a common residence;
2.     Long term intimate or romantic involvement;
3.     Shared assets or common bank accounts;
4.     Joint contribution to household expenses; and
5.     Recognition of the relationship by the community.

In reviewing the above factors, it is clear that our courts view cohabitation as 'tantamount to a marriage.' 
   

Further, in looking at whether there are changed circumstances which warrant modification of alimony in the case of cohabitation, modification would be warranted when either the cohabitant contributes to the dependent spouse's support or lives with the dependent spouse without contributing.  In the Olito case, the Appellate Division agreed with the trial court in that the Defendant, ex-Husband, offered no evidence of either an intimate relationship or economic interdependence.  In the absence of such evidence, the ex-Husband failed to meet his burden of proof, and, therefore, the Court was right to reject the claim of cohabitation and thereby modify his alimony obligation.   

Full post as published by New Jersey Law Blog on March 25, 2009 (boomark / email).