Proving Cohabitation Without Access To Necessary Evidence

Using Facebook posts by his ex-wife’s significant other to support his claims, Steven Robitzski claimed cohabitation of his ex-wife with another as a reason for reduction in his alimony obligation under the 2014 revisions to the alimony statute, N.J.S.A. 2A:34-23. Robitzski sought additional discovery from the plaintiff with regard to her finances and the court held that the defendant failed to make a prima facie showing of cohabitation that would be required prior to their compelling discovery from Lorraine Robitzski. The property settlement agreement (PSA) which the parties agreed to at the time of their divorce contemplated alimony of $2,500 monthly from husband to wife and contemplated certain circumstances, including the wife’s future cohabitation, as a reason for termination of alimony. Cohabitation, as defined in Gayet v. Gayet, 92 N.J. 149 (1983), and Konzelman v. Konzelman, 158 N.J. 185 (1999), contemplates a marriage-like relationship including “stability, permanency and mutual interdependence.” The plaintiff denied that she cohabitated with her significant other claiming he spends approximately 100 nights per year at her residence and that they maintain separate finances and residences. The plaintiff provided the defendant with bank accounts showing she paid her own bills for 2013 and 2014 without deposits from unknown sources. The judge found the Facebook postings to be inadmissible and of limited probative value in any event. The judge did however order the significant other to provide certain certification with regard to his living arrangements and finances as well as ordering the plaintiff ex-wife to provide proof of her own expenses and how they are met. On appeal, in Robitzski v. Robitzski, there was consideration of Konzelman with regard to whether the cohabitation criteria existing at the time of the divorce or the amended criteria would apply. In 2014, N.J.S.A. 2A:34-23 was modified to reflect the following criteria for a court to use when assessing whether cohabitation exists: (1) Intertwined finances such as joint bank accounts and other joint holdings or liabilities; (2) Sharing or joint responsibilities 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. Also to be considered is the duration of the relationship. The 2014 amendments include a provision indicating they are effective from 2014 and do not modify prior agreements or orders. The N.J. Appellate Division looked to Landers v. Landers, ___ N.J. Super. ___ (App. Div. 2016) and Spangenberg v. Kolakowski, 442 N.J. Super. 529 (App. Div. 2015) with regard to whether the 2014 amendments would be applied retroactively. The Appellate Division determined that it no matter which version of the statue was applied, the defendant failed to make a prima facie case for cohabitation and opined that even if the trial judge had allowed the Facebook postings regarding vacations and events the parties enjoyed together, there would not be a prima facie showing of cohabitation. The decision of the trial court was affirmed. In light of changes to the laws governing alimony and cohabitation, it is critical that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony obligation based upon your ex-spouse's cohabitation with another person or for any other reason it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, post-judgment modification, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and is in no way intended to replace the advice of an attorney.