A common question asked by clients is, “What is cohabitation?”. As the cohabitation of a former spouse receiving alimony is regularly built into settlement agreements as a reason for a payor to request a review of alimony, it is an important definition for clients to understand. Oftentimes, clients believe cohabitation is simply the act of living with a significant other but, unfortunately, it is slightly more complicated than that and, in some circumstances, cohabitation can be proven absent a shared residence.
Pursuant to N.J.S.A. 2A:34-23n, cohabitation is defined as "a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household." (emphasis added). The statute specifically outlines seven factors for the Court to consider when determining the occurrence of cohabitation:
(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 within the meaning of subsection h. of [N.J.S.A.] 25:1-5; and
(7) All other relevant evidence.
The statute further states that the Court shall take into consideration the length of the relationship.
The issue of cohabitation was recently addressed by the New Jersey Appellate Division in the unpublished (not precedential) decision of Meixner v. Meixner. There, the parties’ property settlement agreement (PSA) required the husband to pay alimony to the wife for a term of 20 years, but also provided he could seek to terminate his alimony obligation if the Wife "cohabitate[d] with an unrelated adult in a relationship tantamount to marriage in accordance with the New Jersey case law at the time."
In his application to the trial court, the Husband alleged that the Wife and her significant other basically lived together despite them both retaining separate residences. More specifically, he claimed the Wife and her significant other quarantined together during the Covid-19 pandemic, spent Christmas 2018 and other holidays together and the parties’ children’s doctors recognized the Wife and her significant other to be in a committed relationship. Husband additionally set forth times wherein he was in the Wife’s residence and found a few articles of men’s clothing hanging in the Wife’s closet and that the Wife had framed photos of her and her significant other in her bedroom. The Wife’s neighbors also allegedly mistook the Husband for her significant other when he was visiting. Beyond those claims, the Husband presented a report from private investigator wherein the Wife and her significant other were monitored for nine days in October 2019 and in which the significant other’s car was seen in her driveway on seven of those days. The Wife disputed that any of these allegations was demonstrative of her cohabitating with her significant other.
The trial court found that the Husband’s application lacked any evidence of “intertwined finances, joint back accounts or other holdings or liabilities”. He additionally failed to produce anything that showed the Wife and her significant other shared in any living expenses, despite living is separate households. The court noted that Husband did produce some evidence showing that Wife and her significant other assisted each other with some household chores but that these were insignificant, and also that he failed to show an enforceable promise of support from Wife’s significant other or any other evidence proving cohabitation.
On appeal, the Appellate Division agreed with the trial court’s findings and concluded, at best, the Husband showed that the Wife and her significant other were in nothing more than a dating relationship. The Appellate Division noted that the Husband’s observations were of isolated events and there was a lack of photographic evidence to show anything more than a dating relationship.
So what is the takeaway here? In cohabitation matters, it is important that clients understand what cohabitation means and how to pursue/defend against such a claim. As demonstrated above, it is never as straightforward as it may seem and is always highly dependent on the facts and circumstances involved.