August 14, 2022


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Cohabitation Beneath NJ Law: A Specific Marriage

Terminating alimony, or the denial of a assert for alimony based mostly on cohabitation by the payee, has constantly been a problematic space of the legislation. Payees making an attempt to perpetuate alimony usually just keep away from remarriage and have on a really serious marriage with a cohabitant while conducting them selves in a way so as to skirt the legal definition of cohabitation.

Recognizing this challenge, in 2014, the New Jersey Legislature enacted N.J.S.A. 2A:24-23n, which broadens the authorized definition of cohabitation. Sadly, not one particular documented circumstance has been issued on the dilemma of particularly what constitutes “cohabitation” beneath the new statute since its enactment.

Although there have been attempts to handle what constitutes a prima facie case needed to receive discovery from an alleged cohabitant or payee, the bar carries on to await the courtroom to weigh in on what ought to be proven at ultimate hearing to prove cohabitation. See Landau v. Landau, 461 N.J. Super. 107 (App. Div. 2019) Temple v. Temple, A-0293-20 (Application. Div. 2021).  In spite of a absence of scenario law, we feel there is a street map for establishing cohabitation under the new statute.

Not too long ago, we represented the payor spouse in an 8-day arbitration divorce trial by using Zoom. Our circumstance involved a marriage of 19 decades, in which we petitioned for the denial of alimony based on the payee spouse’s pendente lite cohabitation. Our achievements in possessing alimony terminated has strengthened our perception that in developing cohabitation practitioners need to display a “special relationship” concerning the payee and the cohabitant.

N.J.S.A. 2A:34-23n, which grew to become productive on Sept. 10, 2014, gives in relevant section: 

Alimony may well be suspended or terminated if the payee cohabits with an additional particular person. Cohabitation will involve a mutually supportive, personal individual marriage in which a few has carried out obligations and privileges that are usually affiliated with marriage or civil union but does not always retain a one typical household.

When evaluating irrespective of whether cohabitation is developing, the courtroom shall contemplate the following: 

(1) Intertwined funds this kind of as joint financial institution accounts and other joint holdings or liabilities

(2) Sharing or joint duty for living expenses

(3) Recognition of the marriage in the couple’s social and loved ones circle

(4) Residing alongside one another, the frequency of get in touch with, the duration of the relationship, and other indicia of a mutually supportive personal private relationship

(5) Sharing house chores

(6) Regardless of whether the receiver of alimony has been given an enforceable assure of assistance from an additional person in just the which means of subsection h. of R.S.25:1-5 and

(7) All other pertinent evidence.

In evaluating no matter whether cohabitation is taking place and whether alimony need to be suspended or terminated, the court docket shall also look at the size of the relationship. A court docket could not find an absence of cohabitation exclusively on grounds that the couple does not reside with each other on a whole-time basis.

While the statute mostly codifies components formulated for addressing cohabitation in the pre-statute period, less than the new regulation, cohabitation does not require a payee and cohabitant to live collectively on a whole time foundation. On top of that, the component of financial advantage or a economic nexus involving the cohabitant and the alimony payee, ushered in with Gayet v. Gayet, 92 N.J. 149 (1983), is no more time a sine qua non of cohabitation.

From our standpoint, notwithstanding the new statute, demo courts look mired with purposes focusing on the financial nexus in between the get-togethers and the extent to which parties shared overnights with each other. Even so, debating in excess of how many overnights for every 7 days or the degree of a financial connection that is essential to constitute cohabitation misses the mark and fails to distinguish a mere dating marriage from one thing far more profound. We believe that that the statute invites a new and deeply factual evaluation in get to establish cohabitation. In that regard, concentrating only on sensational aspects (e.g., “the get-togethers expended X overnights together” or “who paid out for this meal or that vacation”) often ignores the proofs that mirror the fullness of the marriage between the payee and cohabitant. 

Painting the portrait of a specific connection is not easy. It needs exploration of what could be viewed as tedious features of a relationship—which only taken in the aggregate will verify to be significant. Cohabitation scenarios can be gained in spite of the payee and cohabitant not living together full-time, or not overtly comingling finances. Cohabitation instances can be gained upon a demonstrating of info which, when combined, discuss to a relationship of balance, permanency and mutual interdependence. 

In our view, practitioners should eschew concentrating exclusively on specified sensational aspects of the marriage among the payee and the cohabitant at the price of ignoring the additional “mundane” facts that build a critical bond involving two people. These mundane particulars turn into the mosaic which distinguishes a mere courting partnership from a “mutually supportive, personal private relationship” as referenced in the statute. To earn the challenge of cohabitation, lawyers ought to be organized to do a deep dive into the lifestyle of two people today in buy to build a exclusive romance. These kinds of a presentation will enable the trier of truth to conclude, as said by Justice Potter Stewart in the now infamous obscenity case Jacobellis v. Ohio, 378 U.S. 184 (1964), “I shall not nowadays try to determine (it) … But I know it when I see it.” 

Even when functions do not live jointly or comingle their funds, there are ways to methodically assemble a collection of smaller factual instances which—taken together—can establish a specific marriage. Though no mounted exhaustive listing of factors can be produced, we shut by providing a broad range of facts that our encounter indicates can be hallmarks of a unique romance.

  • The payee admits to a mutually supportive partnership with the cohabitant.
  • The payee admits to an intimate individual relationship with the cohabitant.
  • The payee has been in a relationship relationship with the cohabitant for an prolonged period of time of time.
  • The payee’s connection with the cohabitant is her longest romantic romantic relationship, aside from the payee’s romance with the payor.  
  • The payee has ongoing the relationship with the cohabitant pendente lite, notwithstanding the reality that the payor has been looking for to terminate alimony primarily based upon the romance in between payee and the cohabitant. 
  • The payee is in a position to determine the cohabitant’s birthday. The payee and the cohabitant accept each other’s birthdays and celebrate birthdays alongside one another. 
  • The payee is aware the cohabitant’s family members associates, and has hosted them in the payee’s home.
  • The payee is aware of the cohabitant’s roommate. 
  • The payee has talked over child custody problems with the cohabitant.
  • The payee has reviewed monetary difficulties with the cohabitant. 
  • The cohabitant accompanied the payee at a meeting with the payee’s matrimonial attorney. 
  • The payee and the cohabitant have shared pursuits (whether it be athletics, leisure, leisure, and many others.) and they pursue those shared interests together. 
  • The cohabitant is a protector for the payee. The cohabitant accompanies the payee at the drop off or choose up of the youngsters with the payor. The cohabitant is also present at the payee’s residence when other people visit the residence.    
  • The payee makes it possible for the cohabitant to generate the payee’s motor vehicles.
  • The payee trusts the cohabitant. 
  • The payee gives the cohabitant liberal accessibility to the payee’s unemancipated kids. The payee allows the cohabitant to invest time by itself with the children. The payee is at ease with the cohabitant currently being in the presence of other people’s kids who the payee provides into the payee’s dwelling.  
  • The payee sites the cohabitant’s title as a get in touch with for the kids with educational facilities, wellbeing-care vendors, sports groups, and so on.
  • The payee presents the cohabitant entry to the payee’s home when the payee is not existing. 
  • The payee offers the cohabitant the alarm code, garage code, and/or a established of keys to the payee’s home.
  • The payee admits to using suggestions from the cohabitant and considers the cohabitant to be a “sounding board.” 
  • The cohabitant and the payee say “I love you” to every other.
  • The payee and the cohabitant rejoice holidays collectively. 
  • The cohabitant is supportive in raising the youngsters.
  • The cohabitant transports the little ones and requires them to their routines.  
  • The cohabitant stays in contact with the youngsters by way of textual content messages and FaceTime. 
  • The cohabitant accompanies the payee and the small children to leisure routines and places to eat.  
  • The cohabitant has achieved company companies on the payee’s behalf at the payee’s home, when the payee was not existing. 
  • The cohabitant has signed for mail/deliveries at the payee’s dwelling.
  • The payee’s social and relatives circle know about the cohabitant. The payee is not hiding the connection with the cohabitant or maintaining it a magic formula from everyone. 
  • The payee has launched the cohabitant to the payee’s parents. The payee and the cohabitant have stayed in the payee’s parents’ residence, and have slept in the similar mattress for the duration of their keep. 
  • The payee has released the cohabitant to the payee’s very best close friends, and they have all dined alongside one another on much more than one particular situation.  
  • The cohabitant was existing when the payee threw functions and numerous occasions at the payee’s household. 
  • The cohabitant was current at the payee’s child’s graduation get together.
  • The cohabitant has been introduced to the payee’s kinfolk. 
  • The payee’s family all know the payee is in a marriage with the cohabitant. 
  • The cohabitant sleeps with the payee in the payee’s bedroom when the payee’s children are in the household.  
  • The cohabitant and the payee have put in holiday seasons alongside one another, like Thanksgiving and Xmas. 
  • The cohabitant has been present in the payee’s dwelling when the payee’s small children were opening their Christmas presents. 
  • The payee admits to looking at the cohabitant in individual “very usually.” They try to eat meals alongside one another, have overnights jointly, and go on vacations jointly. 
  • The cohabitant requires showers at the payee’s residence and retains razor blades, deodorant, and miscellaneous personalized effects there. 
  • The cohabitant parks a automobile in the payee’s garage. 
  • The payee has been to the cohabitant’s apartment and spot of employment.
  • The cohabitant has blown leaves and taken out snow at the payee’s dwelling.
  • The cohabitant and the payee go food searching jointly. The cohabitant helps the payee to deliver groceries into the payee’s property. 
  • The cohabitant has taken the payee’s motor vehicle for typical provider and repairs. 
  • The cohabitant assisted the payee in cleaning the payee’s holiday household. 
  • The cohabitant delivers his pet to the payee’s household. 
  • The cohabitant and the payee have matching or correlating tattoos determining their relationship.
  • The cohabitant has done banking for the payee.
  • The cohabitant has repaired, set, and/or reprogrammed the payee’s laptop, cable, and/or amusement method.
  • The cohabitant has taken out the rubbish at the payee’s household.
  • The cohabitant and the payee have talked about marriage. 

John P. Paone Jr. has over 35 years of encounter in loved ones regulation, little one custody and divorce, and is a founder and senior companion of The Law Places of work of Paone Zaleski & Murphy in Woodbridge. Cassie Murphy is a associate at the agency, focusing her observe in spouse and children law, youngster custody and divorce. The two authors are Certified Matrimonial Regulation Lawyers.