PDAs And Living Together Does Not Show Cohabitation

In Wood v. Wood, Alan Wood sought to terminate his alimony obligation to Wendy Wood, pursuant to the terms of their property settlement agreement (PSA), based on her cohabitation with another man. The parties were married from 1993 until 2016 and two daughters were born of the marriage. Under the terms of the PSA, the Defendant, Alan Wood, was to pay the Plaintiff alimony of $525 weekly for a term of 10 years following the date of the parties’ divorce but could be modified or terminated, pursuant to N.J.S.A. 2A:34-25, in the event that the wife cohabited. The Defendant hired a private investigator to confirm that the Plaintiff was cohabiting with her boyfriend, K.C. The private investigator claimed that the boyfriend was at the Plaintiff’s residence 14 out of 15 non-consecutive dates at varying times of the day. Additionally, K.C.’s name was associated with both the marital residence, foreclosed upon following the parties’ divorce, and the Plaintiff’s current residence. K.C. used the Plaintiff’s address on his driver’s license and voter registration. On the various visits, K.C. was observed using keys to the residence, keys to the locked mailbox and kissing the Plaintiff. The private investigator opined the K.C. and the Plaintiff were permanently cohabiting together in a romantic relationship. In addition to a cross-motion, Plaintiff responded that K.C. was a roommate necessitated by her multiple disabilities which prevented her from working and for which she had not yet received any disability benefits. Plaintiff indicated that she could not qualify for a rental on her own as she did not have sufficient income. Plaintiff testified that she and K.C. each paid for their own expenses including groceries, rent and utilities and that they had separate rooms and baths. To further her position, the Plaintiff testified that, when she had brain surgery, her family and friends cared for her, not K.C., and that she and K.C. did not socialize together. Plaintiff also offered certifications from family members, a copy of the condominium lease and a letter from her doctor corroborating her position. The Defendant offered the private investigator’s report of K.C. and Plaintiff kissing, K.C. accompanying Plaintiff to Robert Wood Johnson Hospital and the fact that the parties’ children have advised him of the longtime romantic relationship between K.C. and Plaintiff and the fact that, as long ago as his final walk through at the marital residence preceding foreclosure, the Defendant observed men’s clothing that did not belong to him comingled with the Plaintiff’s clothing. Defendant further contended that the Plaintiff and K.C. were in fact co-lessees per the evidence Plaintiff provided. Plaintiff’s response was to deny kissing K.C., admit he drove her to the hospital on a single occasion, deny the presence of men’s clothing with her own and to acknowledge that she did rent a room to K.C. in the marital residence, prior to foreclosure thereupon, in order to obtain money for utility payments. The judge below denied Defendant’s motion finding that, absent a prima facie showing of changed circumstances, the court could order further discovery under Lepis v. Lepis, 83 N.J. 139 (1980) and Crews v. Crews, 164 N.J. 11 (2000) but, absent a prima facie showing of changed circumstances, it was inappropriate for the court to order additional discovery of a parties’ financial status. The judge included that a finding of cohabitation required a finding that the cohabitation include the kind of mutual support and intimacy commonly associated with a marital relationship, pursuant to Konzelman v. Konzelman, 158 N.J. 185, (1999), and concluded that the proof offered by the Defendant was not enough to substantiate such a belief. Defendant appealed arguing that the Plaintiff’s living with someone else was enough that he should have opportunity to obtain her basic financial information and also argued that genuine issues of material fact existed. The N.J. Appellate Division affirmed based on the record below and also cited to Gayet v. Gayet, 92 N.J. 149 (1983) and Ozolins v. Ozolins, 308 N.J. Super. 243 (App. Div, 1998) collectively holding that a prima facie case of cohabitation in a relationship equivalent to that of a marriage is required in order to obtain mutual discovery and only after such prime facie showing is made will the dependent spouse be required to defend the continuing need for alimony. If you are seeking to stop paying alimony based on cohabitation or to defend your alimony when cohabitation has been falsely alleged, call The Darling Law Firm, LLC now at 973-584-6200. For more information about alimony, cohabitation, divorce or other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.

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.

Alimony Reduction As Ex-Wife Cohabitates

In the recent Appellate Division case on appeal from Morris County, Clayton v. Clayton, the Plaintiff William Clayton appealed from a post-judgment Order arguing that the Defendant, Susan Clayton's cohabitant's financial support and her earned income represent a change in circumstances to modify his alimony obligation. This case returned to the Appellate Court after the court remanded it back to the trial court for additional evidence based upon the Plaintiff's application to terminate his alimony obligation upon a change in circumstances. On remand, a new judge took the testimony of the parties and lowered the monthly reduction of alimony from $874 a month to $47. The Plaintiff then filed another appeal making the same arguments that he previously made. The parties in this case were married in 1970 and had four (4) children. They divorce in 1997 and the Defendant moved in with her cohabitant, a man named Stuart Vreeland in 2002. Initially the court found that "Cohabitation alone is not justification to terminate spousal support," and the true test for alimony is the financial needs of the dependant spouse. Gayet v. Gayet, 92 N.J. 149 (1983). The question becomes whether or not the relationship had reduced the needs of the former spouse. Ozolins v. Ozolins, 308 N.J. Super. 243, 247 (App. Div. 1998). The remand judge found that the Defendant's job, which paid her $28,000 a year, did not represent a change of circumstances because she had been employed at the time of the divorce and that her income had remained approximately steady over the intervening years. The judge found that Mr. Vreeland contributed $47 less than his half of the shared expenses and the Plaintiff was in part supporting Vreeland with alimony and therefore the judge reduced the Plaintiff's alimony by $47. The Appellate Division held that the decision whether to modify or terminate alimony based upon a claim of changed circumstances "rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). In this case, the remand judge held a hearing where each party offered his and her testimony on the issues. The court found that if the Defendant's shared expenses represented fixed expenses that the Defendant would incur regardless of whether or not Mr. Vreeland lived with her, then it can be said that his contribution is being used to partly support the Defendant. Using the Defendant's Case Information Statement as well as documents reflecting Mr. Vreeland's contribution the Appellate Court recalculated that the Plaintiff's reduction in monthly alimony should be $934 and not $47. Therefore, the case was affirmed in part, reversed in part, and remanded to enter a correct Order noting the change. If you anticipate that you may want to petition the court for 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, divorce, child support, equitable distribution, 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.