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.

Alimony Not Terminated In Spite Of Cohabitation

In Coshland v. Coshland, the Defendant appealed from a Family Court Order that denied his Motion to terminate his alimony payments because he claimed that the Plaintiff was cohabitating with her boyfriend. The Appellate Division affirmed the decision of the Family Court finding that the Plaintiff's boyfriend did not cohabitate but was a frequent visitor who did not economically benefit the Plaintiff. Following a twenty-seven (27) year marriage that yielded two (2) children, the parties divorced in 2011 pursuant to a Property Settlement and Support Agreement (PSSA). The agreement directed that the Defendant would pay $230 a week in alimony but stated that the obligation would terminate if the Plaintiff were to begin "residing with an unrelated person, or vice versa, where [the Plaintiff] is receiving and economic benefit, for a period of not less than 30 consecutive days." After the divorce the Plaintiff moved to a townhouse that was recently vacated by two of the Plaintiff's friends, K.C. and her brother J.C. The townhouse was individually owned by K.C. After the Plaintiff moved in, J.C. began to spend two to five nights a week at the townhouse. The Plaintiff and J.C. "attempted" a romantic relationship but both claimed at the time of the hearing that the relationship was platonic. When the Defendant suspected the Plaintiff of cohabitating with J.C. he hired a private investigator to gather information about the relationship. Between March and April 2013, the investigator observed the Plaintiff and J.C. arriving home from work together (they both worked at Shop-Rite) and the Plaintiff visited the residence seventeen (17) times in that time frame. The Defendant filed a Motion to terminate his alimony. The Family Court Judge denied the Motion and scheduled a plenary hearing to take place. At the hearing, the judge heard testimony from the private investigator, a real-estate expert, and the Plaintiff. After hearing the testimony, the judge issued an oral opinion denying the Defendant's Motion to terminate alimony finding that J.C. did not live at the townhouse and that the Plaintiff was not receiving economic benefit from his visits. The Defendant appealed. According to the Appellate Division, alimony can be modified if a party demonstrates a significant financial change since the alimony was first awarded. Reese v. Weis, 430 N.J. Super. 552, 572, 66 A.3d 157 (App. Div. 2013). One type of changed circumstance is cohabitation by a former spouse. Gayet v. Gayet, 92 N.J. 149, 155, 456 A.2d 102 (1983). Cohabitation is typified by a showing of a relationship "shown to have stability, permanency, and mutual interdependence." Konzelman v. Konzelman, 158 N.J. 185, 202, 729 A.2d 7 (1999). Therefore, a former spouse residing with a significant other is not, by itself, enough to terminate alimony, further, there must be additional proof that the cohabitating spouse received some form of economic benefit from the cohabitation or the supported cohabitant "supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief. Reese, supra, 430 N.J. Super. at 557-58, 576; Gayet, supra, 92 N.J. at 153-54. Proving cohabitation creates a rebuttable presumption of changed circumstances. Ozolins v. Ozolins, 308 N.J. Super. 243, 248, 705 A.2d 1230 (App. Div. 1998). Accordingly, the burden of proof which is ordinarily on the party seeking modification, shifts to the dependant spouse to prove the lack of economic benefit and continued need for support. Id. at 248-49. In this case, the Appellate Division found that apart from proving J.C.'s frequent overnight stays at the Plaintiff's residence, the Defendant failed to present any evidence in support of an intimate relationship or economic benefit. Therefore, the Family Court's denial of the Defendant's Motion was affirmed. Being that the laws governing the issues involving alimony and cohabitation have recently been changed, it is very important 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 in no way is intended to replace the advice of an attorney.

Alimony Suspended For 9 Months Based Upon Cohabitation

In Fringo v. Fringo, the Plaintiff appealed from a Family Court post-judgment Order issued in 2013 that suspended her entitlement to alimony for nine (9) months because of the Plaintiff's cohabitation with her significant other. In her appeal the Plaintiff argued that the Family Court erred because the Defendant failed to prove a prima facie case of cohabitation and even if he had rebutted the presumption. The Appellate Division affirmed the decision of the lower court. The parties were married in 1993 and divorced in 2011 pursuant to a final judgment of divorce and an incorporated marital settlement agreement (MSA). The MSA stated that the "...parties agree that cohabitation by wife shall constitute a substantial change in circumstance in accordance with NJ law." In 2013, the Defendant filed a Motion seeking the modification or termination of his alimony obligation because the Plaintiff was cohabitating with another person. The Defendant submitted with his Certification the Certification of a private investigator who prepared a report detailing that the Plaintiff's boyfriend began to live in her apartment in December of 2012. After hearing oral argument in 2013, a Family Court judge granted the Defendant's Motion for a modification of alimony based upon the Plaintiff's cohabitation relying on Ozolins v. Ozolins, 308 N.J. Super. 243 (App Div. 1998) and Reese v. Weis, 430 N.J. Super. 552 (App. Div. 2013), and based upon the Plaintiff and her boyfriend's admission that he lived with her for nine (9) months in 2012. Therefore, the court terminated the Defendant's alimony for nine (9) months and credited the Defendant's overpayment against eighteen (18) of future alimony payments. Subsequently, an appeal was filed. According to the Appellate Court, alimony awards are not set in stone and can be modified if a party demonstrates a significant financial change since the alimony was first awarded. Reese v. Weis, 430 N.J. Super. at 569. Further, an alimony award can be modified based upon a changed circumstance which rests with the discretion of the judge. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Cohabitation constitutes a change in circumstances. Gayet v. Gayet, 92 N.J. 149, 155 (1983). The Appellate Court's review of the record displayed that the Plaintiff and her boyfriend admitted in their prior Certifications to the court that they lived together and failed to rebut that presumption therefore the Defendant was able to establish a prima facie case of changed circumstances for the time period that the Plaintiff's boyfriend was living with her, which was nine (9) months in 2012. As a result, the Appellate Court affirmed the decision of the lower court. The laws governing alimony and cohabitation have recently been changed. It is very important that you seek out the advice of an experienced family law attorney to protect your rights an entitlements if you are considering a post-judgment modification of your alimony obligation based upon your ex-spouse's cohabitation with another person or for any other reason. For more information about alimony, divorce, post-judgment modification, child support, 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.

Alimony Terminates On Date Cohabitation Begins Absent Proof Of Delay In Economic Benefit

Schlumpf v. Schlumpf, is a New Jersey Appellate Division case in which the Defendant appealed from two (2) post-judgment Family Court Orders filed in 2013 regarding his alimony obligation following the Plaintiff's admitted cohabitation with her significant other. The Defendant claims that the date terminating his alimony obligation should be adjusted by four (4) months (earlier), to when the Plaintiff admitted her cohabitation. The Plaintiff argued that when she began cohabitating with her significant other she did not, at first, receive an economic benefit from the arrangement and therefore the Order terminating the Defendant's obligation at a certain date should not be modified. According to the Appellate Division, its review of the termination of alimony was "limited to whether the court made findings inconsistent with the evidence or unsupported by the record, or erred as a matter of law." Reese v. Weis, 430 N.J. Super. 552, 572 (App. Div. 2013). A Motion requesting the modification of an "alimony obligation 'rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters." Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009). Typically, alimony can be altered based upon a changed circumstance which rests with the discretion of a Family Court Judge. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App Div. 2006). A type of changed circumstance would be the cohabitation of a spouse. Gayet v. Gayet, 92 N.J. 149 (1983). The parties in this case expressly acknowledged in their Marital Settlement Agreement (MSA) that such an event would constitute a changed circumstance which would warrant the modification of the Defendant's alimony obligation. Beyond cohabitation, there must be proof that a cohabitating spouse is receiving some form of economic benefit from the cohabitation. Reese, supra, 430 N.J. Super. at 557-8, 576. A spouse's proof of cohabitation establishes a rebuttable presumption of changed circumstances that once established shifts the burden of proof to the dependant spouse. Ozolins v. Ozolins, 308 N.J. Super. 243, 248 (App. Div. 1998). In this case, the Appellate Division found that there was no evidence to support the Family Court judge's selection of a particular date for the termination of the Defendant's alimony based only on the Plaintiff's suggested date. A review of the record, indicated to the Appellate Court that the Plaintiff failed to rebut the presumption that she began to get an economic benefit from cohabitating when she moved into her boyfriend's house. Therefore, the court concluded that it was an abuse of the court's discretion to fix the termination date at the date agreed to by the Plaintiff instead of terminating alimony when the Plaintiff and her children relocated to the residence of her boyfriend. The laws governing alimony have recently been changed, making it very important that you seek out the advice of an attorney to protect your rights an entitlements. If you are seeking post-judgment modification of your alimony obligation based upon your ex-spouse's cohabitation 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.

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.

Cohabitation Ends Alimony In Post-Judgment Modification Matter

In a recent post-judgment modification case, Syslo v. Syslo, the Plaintiff, Ann Marie Syslo, lost her appeal from a 2013 Family Court decision which granted the Defendant, Raymond Syslo's request to terminate his alimony obligation because she cohabitated with another person. The facts of the case are as follows. The Plaintiff and Defendant were married in 1990 and subsequently the couple were divorced in 2004. Three children were born of the marriage, the youngest of which still resides with the Plaintiff. Currently, the Defendant is obligated to pay $210 a week in child support. When the parties' decided to obtain a divorce, the Defendant agreed to pay to the Plaintiff $70 a week in alimony. That obligation was increased to $225 a week in 2007. Around 2010, the Defendant began trying to gather proof that the Plaintiff was co-habitating with another person. To do this, he hired a private investigator and began to film the cohabitant staying at the Plaintiff's residence overnight. He accumulated documentary evidence for about thirty-five days taking place in October of 2010, September of 2011, and March and April of 2012. These videos also revealed that the cohabitant possessed a key to the Plaintiff's residence, which he used to enter the home both when the Plaintiff was in the home and when she was not there. The cohabitant also drove the Plaintiff's car from time to time and transported the Plaintiff's child to different places and had opened joint bank accounts with the Plaintiff. Further, the Defendant was able to obtain evidence that the cohabitant received mail at the Plaintiff's home. As a result of this information and the testimony of the parties' emancipated children as well as that of the alleged cohabitant and Plaintiff, a Family Court judge found that the Defendant was able to establish that there was cohabitation. Konzelman v. Konzelman, 307 N.J. Super. 150 (App. Div. 1998). According to the judge, the Plaintiff and cohabitant acted like a "relatively permanen[t]" family unit, with the assumption of the duties and obligations "associated with marriage." Pursuant to this finding, the judge terminated the Defendant's alimony obligation effective on the date of the entry of the Order. The Plaintiff appealed this decision and argued that the trial court erred by finding that she had cohabitated within the legal understanding of the word. The Appellate Court affirmed the findings of the Family Court. According to the Appellate Division, it is well established that the cohabitation of a spouse who is receiving alimony constitutes a change in circumstances that may relieve the payor spouse from his or her alimony obligation. Gayet v. Gayet, 92 N.J. 149, 155 (1983). The cohabitation relationship must be more than simply an intimate relationship, it must also include that the parties engage in "duties and privileges that are commonly associated with marriage." Konzelman, 158 N.J. at 202. Some factors for consideration include if the parties share living expenses and household chores, intertwined finances, and recognition of the relationship in the couple's social and family circle. In the current case, the court found that the evidence on the record amply supported the Family Court judge's determination that cohabitation was established. If you anticipate that you may want to petition the court for a post-judgment modification of your alimony award based upon cohabitation or any other relief that was awarded in a final judgment of divorce it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, divorce, alimony, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.