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Does Your Ex-Spouse Have a New “Significant Other”? What Constitutes Cohabitation?

cohabitation in new jerseyOnce alimony is determined by the Court, changing it requires a change in circumstances. One circumstance that is often cited as a reason to reduce or eliminate alimony is cohabitation. The New Jersey Alimony Reform Act, which became law in 2014, clarified the definition of “cohabitation.” A few recent cases have brought this issue into the limelight.

Under the law, there are 8 factors that a judge should consider if a payor has asked for a modification of alimony based on the cohabitation of his ex-spouse:

  • joint bank accounts and other intermingled finances
  • sharing of living expenses
  • recognition of the relationship by family and friends
  • length of the relationship
  • shared household chores
  • whether the payee has received a promise of support from the new partner
  • anything else the judge deems relevant

Many agree that although still difficult to prove cohabitation, the 2014 law makes it somewhat easier for the payor to show that cohabitation exists. Perhaps the most important clarification included in the amended law is that it makes it clear that a couple does not have to live together full time for their relationship to be considered one of cohabitation.

The Alimony Reform Act was not made retroactive. Issues that were previously decided cannot be reopened if the only change in circumstances is the fact that the law was amended.

Two Recent Cases:

Quinn v Quinn

This case involves Cathleen and David Quinn, a couple who divorced in 2006. Each was represented by counsel during the creation of a property settlement agreement (PSA), which provided that alimony would end if the spouse receiving the alimony cohabited.

Using the cohabitation provision of his PSA as the basis, in 2010 David Quinn filed a motion to terminate alimony. It was determined that Cathleen was in a cohabitation relationship, but by the time the case was heard, the relationship had ended. The Court suspended alimony for the 2-year period during which the couple cohabited, but denied Mr. Quinn’s request for permanent termination.

In October 2015, David Quinn appealed the ruling, and on May 3, 2016, the Supreme Court of New Jersey ruled that alimony should be terminated. The Court based its decision on several considerations:

  • The language and intent of the PSA was clear and unambiguous.
  • Both parties had independent counsel for the preparation of the PSA.
  • A PSA is a binding contract and should be treated as such.
  • Parties in a divorce have the right to enter voluntary agreements,

and those agreements should be enforced.

  • New Jersey routinely ends alimony if the recipient remarries.

Alimony is not reinstated if the recipient then divorces.

  • The fact that the relationship was one of cohabitation was not in question.

The decision to terminate alimony was not unanimous. Those who dissented explained that they thought economic ramifications should have been considered.

Robitzski v Robitzski

Steven and Lorraine Robitzski divorced in 2004. Their PSA had in it a clause stipulating that alimony would be eliminated or modified in the event of Lorraine’s cohabitation. It did not specify whether the definition of “cohabitation” would be based on 2004 statutes or on future laws.

In January 2015 Steven Robitzski used that cohabitation clause as the basis for a motion to end his obligation to pay alimony. His evidence was based partially on Facebook postings. Also, he wanted the Court to base its definition of “cohabitation” on the one given in the Alimony Reform Act of 2014.

The Court decided against Mr. Robitzski, stating that he did not make a prima facie case. In other words, he did not provide enough evidence to establish his claim that a cohabitation relationship existed. However, he appealed the case, and on April 6, 2016, the case was heard in the Superior Court of New Jersey, Appellate Division.

On May 5, 2016, the Appellate Division released its unpublished opinion. The Court denied Steven Robitzski’s request and affirmed the motion judge’s determination. These were some of the factors that were considered:

  • There was not enough evidence of a cohabitation relationship.
  • The Facebook postings were hearsay;

even if allowed, the postings would not provide sufficient evidence.

  • The alimony obligation was made effective through a judicial order;

therefore, the 2014 statute cannot be used retroactively.

Although the Court denied Mr. Robitzski’s request, it did leave open the possibility of future motions if he obtains additional evidence.

A Complex Issue

The Alimony Reform Act of 2014 provides some clarification as to the definition of “cohabitation,” but it is still a complex issue. Although the judge is given 8 criteria that must be considered, not all of the criteria must be met, and it is up to the judge’s discretion how much weight to give to each factor.

The material provided at this website is intended for general informational purposes only. It should not be regarded as legal advice. Consult an attorney for legal advice concerning your particular situation. You are welcome to call Aretsky Law Group, P.C., at 201-580-3411 to set up an appointment with one of our attorneys.


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