Thursday, March 5, 2015
Cohabitation Under New Alimony Changes
On September 10, 2014, following years of legal and legislative debate, the laws regarding alimony were amended in the state of New Jersey. N.J.S.A. 2A:34-23. Although the lion's share of the attention was directed at the changes to the durational aspect of alimony, there were considerable changes made that affect the modification of an existing or future alimony obligation in the event of an ex-spouse's retirement or cohabitation. An issue may arise regarding what law to apply when an existing property settlement agreement (PSA) provides that the issue of cohabitation be decided using the established case law. The language in a PSA is most commonly bargained for and negotiated amongst the parties and if it contravenes the status of the law such language could preclude the application of the amended alimony statute. To determine whether spousal support should be modified based upon cohabitation the case of Konzelman v. Konzelman, 158 N.J. 185, 202 (1999) and Gayet v. Gayet, 92 N.J. 149, 155 (1983) are most often cited and define cohabitation as an intimate, close, and enduring relationship that requires more than simply a common residence. An evaluation must look to whether or not two people were in a long term romantic relationship, shared finances, shared living expenses, and held themselves out to friends and families as a romantic couple. The amended statute's definition of cohabitation is similar but not as clearly defined. Most significant, the law requires that a trial judge consider the length of the relationship and address prior inconsistencies in the law. Being that the language of the statute is not as detailed as the case law, a question arises as to the status of the economic-based standard that was established in the Gayet case for modifying support in the event of cohabitation (whether the third-party cohabitant contributes to the dependent spouse's support or whether the third party cohabitant resides in the dependent spouse's home without contributing anything toward the expenses). A question remains as to whether or not this economic benefit test is part of the current law. The Gayet case and the cases that followed it clearly established that modification during cohabitation may mean more than simply the termination of the support obligation. Reese v. Weis, 430 N.J. Super. 552, 572-73 (2013). If there is no longer an economic benefit test, any modification that is not a suspension or termination to support is unnecessary. The new alimony statute directs that "alimony may be suspended or terminated if the payee cohabitates with another person." N.J.S.A. 2A:34-23. Further, the statute does not explicitly provide what facts would be necessary to warrant a suspension of support in contrast to a termination. These issues are all fact based issues that are most often decided at the discretion of the trier of fact, which is the court in these cases. Therefore, the interpretation of the new statute will be developed through future case law created by Family Court judges adjudicating these issues and remain unclear at the present time. Recent changes have been made to alimony laws making it very important that you seek the advice of an attorney to protect your rights and entitlements. If you are considering a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, child support, post-judgment modification , or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.