Modification Based on Cohabitation

By Peter Van Aulen, Esq.

Alimony is always subject to modification based on a significant change of circumstances. Lepis v. Lepis, 83 N.J. 139,155 (1980). Alimony is awarded due to “actual economic dependency”. Id. Cohabitation by a former spouse with another may be a change of circumstances that could warrant a termination or modification of alimony. Unlike remarriage where termination of alimony is usually certain, an alimony award may or may not be terminated upon cohabitation.

Cohabitation requires more than a common residence or mere sexual experience, but entails an “intimate,” “close and enduring relationship”. Reese v. Reese, 430 N.J.Super 552, 569 (App. Div.2013) (quoting Konzelman v. Konzelman 158 N.J.185, 202 (1999)). Also, indications of cohabitation can “include, but are not limited to, living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple’s social and family circle”. Id. In order for a Court to find cohabitation, the relationship needs to “bear the generic character of a family unit as a relatively permanent household” see It Reese at 430 N.J. Super 569 (quoting Gayet v. Gayet, 92 N.J.149, 155 (1983)).

In a cohabitation case the Court analyzes the economic relationship of the parties living together to determine if one party “subsidizes the other.” See It. Reese at 430 N.J. Super 569 (quoting Boardman v. Boardman, 314 N.J. Super 314, 347 (App.Div.1998)). If a Court finds that the dependent spouse is economically benefiting from the cohabitation, alimony could be modified or terminated. See It Gayet, 92 N.J. at 155.

One of the latest cases in regard to cohabitation is Reese v. Weis, 430 N.J. Super.552 (App. Div. 2013). The dependant spouse received $100,000 in alimony per year from her former husband. In Reese the dependant spouse lived with her cohabitant for ten-years and purchased a home with him. The dependant spouse lived in said home with her three children and her cohabitant lived there with his two children. The dependant spouse paid four-sevenths and her cohabitant paid three-sevenths of the purchase and renovation costs of their home. The parties both contributed funds to their joint checking account. Said checking account was used to pay the mortgage, and other carrying costs of their home. The couple maintained individual checking and saving accounts, had individual credit cards and separate telephone listings. However, the couple had a joint checking account and joint credit cards which they used to pay joint household expenses. The dependant spouse contended that her cohabitant paid for trips, luxuries and gifts for her and her children, but not her expenses. Yet, the cohabitant paid all costs in regard to cars for her and her children that included a Range Rover and Mercedes CLK. The cohabitant family’s business paid for her health insurance. Consequently, the Court noted that the cohabitant paid certain everyday expenses for the couple. Moreover, the dependant spouse admitted that she would not be able to afford her residence if it was not for her cohabitant‘s contribution. The Court in Reese held that in determining whether an economic benefit is “realized from the cohabitation” the Court could “consider lifestyle enhancements” realized from cohabitation that raise the dependents spouse’s standard of living above what was experienced during the marriage. Id at 577. In Reese, the Court found that the cohabitant’s finances were “not discrete”, but were “intertwined” with the dependant spouse and that dependant spouse enjoyed an economic benefit from the couple’s cohabitation. Id. The Court terminated the dependent’s spouse’s alimony.

Cohabitation cases are very fact sensitive. There could be a lot at stake for both the dependant spouse and the paying spouse. If you are facing a cohabitation situation, call Peter Van Aulen today for a consultation.