WHAT IS THE DEFINITION OF “COHABITATION” FOR ALIMONY PURPOSES?
As a general statement, if a former spouse receiving alimony cohabits with another person in a relationship akin to a marriage, the paying spouse (“payor”) has the right to ask the court to downwardly modify or terminate his / her alimony obligation to the other party ( “payee”). The problem is that most people don’t know where the line is between dating and cohabiting since this line is a little blurry as a result of the new alimony statute in New Jersey.
Manley v. Manley is a recent unpublished decision by the NJ Appellate Division that illustrates why it is so important for those receiving and those paying alimony to understand the legal definition of cohabitation, and what information needs to be presented to the court before an alimony obligation can be terminated or suspended based on a claim that the Payee is cohabitating in violation of the MSA’s non-cohabitation clause.
In Manley v. Manley, the husband filed a post-divorce application seeking to terminate his alimony obligation to his former wife, based on a claim that she was cohabitating with her boyfriend. On reconsideration, the trial court concluded that the husband had failed to present a threshold showing of cohabitation and denied his application. The Appellate Division affirmed the trial judge’s conclusion but laid out the information presented by the husband and the information provided by the wife in opposition, in an effort to highlight the difference between a dating setting and a cohabitation setting.
As part of the parties’ divorce in 2016, they executed a divorce agreement, which agreement -- as to the termination of alimony based on a cohabitation setting -- provided:
[Mr. Manley’s obligation to pay alimony to Mrs. Manley] shall irrevocably terminate upon Mrs. Manley’s cohabitation with someone in the manner of Husband and Wife for a three (3) month period.
Sometime around the beginning of 2020, husband hired a private investigator to gather evidence of his Mrs. Manley’s cohabitation relationship with her boyfriend, so that he could file an application with the court to terminate his alimony obligation to her. Unfortunately, the investigator did a terrible job and simply created a written report stating that evidence was obtained in support of the allegations that the boyfriend and the former wife “were involved in an intimate, mutually beneficial, family relationship.” In addition to this “report”, husband’s application included the following materials as to his claim of cohabitation:
· Documents showing that Mrs. Manley was using her boyfriend’s wholesale club card and his country club membership card.
· Two photographs of the boyfriend attending sporting events for the former wife’s and husband’s children.
· Facebook postings showing the Manley’s children traveling with the boyfriend and his daughter as well as other social media posts showing Mrs. Manley and her boyfriend attending two family functions and several
holiday functions and posts showing that Mrs. Manley and her boyfriend took two vacation trips together over a three-year period of time.
Mrs. Manley opposed her former husband’s application, arguing that she and the boyfriend were merely dating and not cohabitating, and the information presented to the court was insufficient to create a threshold showing of cohabitation. Her argument focused on the distinction between dating and cohabitating to highlight that her former husband failed to present credible information as to the 7 factors used by our court system to define cohabitation.
Under NJ’s alimony statute, N.J.S.A. 2A:34-23(n), Alimony may be suspended or terminated if the payee cohabits with another person.
N.J.S.A. 2A:34-23(n) goes on to define cohabitation as follows:
“a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union[.]”
Under the statute, the definition of cohabitation no longer requires the couple to live together on a full-time basis 24/7, but it does require something more than a mere romantic, casual or social relationship.
To help litigants in understanding the distinction between a dating setting and a cohabitation setting, the new statute provides the following 7 factors that a trial court must consider when it is called upon to determine whether a cohabitation relationship exists:
(1) Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
(2) Sharing or joint responsibility for the 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 R.S.25:1-5; and
(7) All other relevant evidence.
As reflected in the Appellate Division’s decision, Mr. Manley only presented “some evidence” in support of 2 of the 7 statutory factors used by our court system to determine whether a cohabitation setting exists. The Appellate Division held that Mr. Manley ignored the other 5
cohabitation factors, and the proofs presented only showed that Mrs. Manley and her boyfriend had been engaged in an adult dating relationship over the course of three years.
In short, the Appellate Division agreed with the trial judge that Mr. Manley “simply presented evidence of a dating relationship and to terminate or downwardly modify an alimony obligation requires proof of a setting akin to a marriage type relationship”
The Takeaways from Manley v. Manley
Mr. Manley should have sat down with a divorce lawyer BEFORE he decided to hire a private investigator to discuss what proofs his investigator needed to obtain information for purposes of completing the report, and the lawyer involved should have read the actual report by the investigator to confirm that, substantively, the proofs required are laid out properly (as opposed to merely asserting conclusions without any support). Similarly, Mr. Manley should have sat down with the divorce lawyer to review each of the 7 statutory requirements to figure out what information was needed for the application and how to obtain it (if possible). Simply put, Mr. Manley blew it. Mrs. Manley may have been living with her boyfriend and Mr. Manley may have had a legitimate basis for the termination of his alimony obligation but because he did not present it correctly or because he ignored the advice of the lawyer involved, his application failed. As a result, Mrs. Manley now knows exactly what she can do and what things she needs to avoid doing with her boyfriend to avoid termination of her alimony entitlement.
If you are planning to file an application to terminate or suspend your alimony obligation due to your ex’s cohabitation, you must address all 7 of the cohabitation factors set forth in N.J.S.A. 2A:34-23(n) with competent proofs. It is not enough to simply focus all of your (and the expert’s) attention on 1 or 2 of the 7 cohabitation factors.
Conversely, if you are the recipient of an alimony entitlement, you need to be equally conscious of the 7 statutory factors constituting cohabitation, so that you are comfortable that your dating relationship does not cost you your continued receipt of alimony
Regardless of whether you are the Payee or the Payor in an alimony setting, it is important to understand what constitutes cohabitation under N.J.S.A. 2A:34-23(n), and it is equally important to keep in mind the fact that cohabitation does not depend on whether the Payee is living with his/her new partner in the same household full time. A part-time setting can still give rise to a reexamination of an alimony entitlement.
At the end of the day, whether a relationship qualifies as a cohabitation relationship or merely a dating relationship will be determined by the court based on the 7 cohabitation factors set forth in N.J.S.A. 2A:34-23(n).
LAST TAKEAWAY: The number 1 reason for post-divorce applications seeking termination of alimony based on cohabitation are the payee’s social media posts detailing his / her travel; vacations; family gatherings; etc. with the new partner. If you are receiving alimony, you need to think about what you and your new partner post on social media (regardless of whether you are blocking your ex from viewing same). Over 75% of all post-divorce applications seeking
termination of alimony based on a claim of cohabitation rely on their former spouse’s social media posts with her / his new partner.