Law Lessons from ROONEY v. ROONEY, App. Div. (A-2328-07, Decided November 12, 2008):

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Even where the PSA is silent on the issue, “cohabitation [by a divorced spouse] shall constitute . . . changed circumstances.” Gayet v. Gayet, 92 N.J. 149, 155 (1983); see also Ozolins v. Ozolins, 308 N.J. Super. 243, 247-48 ^[1] .]

In the changed circumstance of cohabitation, modification is warranted when either the cohabitant contributes to the dependent spouse’s support or lives with the dependent spouse without contributing. Garlinger v. Garlinger, 137 N.J. Super. 56, 64 (App. Div. 1975). In this regard, some courts have focused primarily on the economic relationship of the parties. The reduction in financial need is “the critical factor” in the analysis of alimony modification. Conlon v. Conlon, 335 N.J. Super. 638, 649-50 (Ch. Div. 2000). The test is whether one cohabitant “subsidizes” the other enough to warrant relief. Boardman, supra, 314 N.J. Super. at 347. This would result in some assemblage of a single economic unit. Pugh v. Pugh, 216 N.J. Super. 421, 424-26 (App. Div. 1987).

Of course, when alleging cohabitation, a party seeking modification of a support obligation must first establish a prima facie case before proceeding further to discovery and ultimately a plenary hearing. Lepis, supra, 83 N.J. at 157. “The burden of proof [then] shifts to the dependent spouse.” Ozolins, supra, 308 N.J. Super. at 248. In other words, once a showing of changed circumstances is made, the economic issues should be addressed after the exchange of discovery and information. Conlon, supra, 335 N.J. Super. at 649-50. “Where the supporting spouse is successful in establishing cohabitation, a rebuttable presumption is created which requires the dependent spouse to address the economic consequence of the relationship in order for the court to make an appropriate assessment regarding a modification or termination of alimony.” Id. at 650.

Gayet is illustrative of proof that satisfies the prima facie threshold. There, the dependent spouse admitted cohabitation four nights a week for a three-and-one-half month period. 92 N.J. at 150. This was deemed sufficient to order discovery and a plenary hearing. Ibid. By comparison here, plaintiff has offered competent proof of the alleged co-habitant’s presence for nineteen of the twenty random days that defendant’s home was monitored over a ninety-day period. Moreover, defendant’s boyfriend has received mail at defendant’s residence and was observed tending to the property. Indeed, defendant does not dispute an intimate relationship and overnight stays, as many as four in a one-week period. We are satisfied that plaintiff’s proofs establish a prima facie case of cohabitation to allow for the exchange of financial information and a plenary hearing to determine whether the current living arrangement has reduced defendant’s financial need from that established in the PSA. Id. at 157-58.

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1. App. Div. 1998); Boardman v. Boardman, 314 N.J. Super. 340, 347 (App. Div. 1998).

   Our courts view cohabitation as “tantamount to a marriage,” Konzelman v. Konzelman, 307 N.J. Super. 150, 161 (App. Div. 1998), aff’d, 158 N.J. 185 (1999), where the couple acts as a “family unit” and there is a relative permanency within the household. Gayet, supra, 92 N.J. at 155. On this score,
   the term “cohabitation” implies more than merely a common residence or a sexual relationship. We believe the ordinary definition of “cohabitation,” describing a relationship of living together “as man and wife,” connotes mutual assumption of the duties and obligations associated with marriage.
   [Konzelman, supra, 307 N.J. Super. at 157-58.]

   To guide trial courts in applying this definition, we have formulated a list of factors to consider in determining whether a relationship constitutes cohabitation. We emphasize, however, that the list is non-exhaustive, and that no one factor serves as an absolute prerequisite for cohabitation. In interpreting “cohabitation,” courts may consider indicia such as:
   1. establishment of a common residence;
   2. long-term intimate or romantic involvement;
   3. shared assets or common bank accounts;
   4. joint contribution to household expenses; and
   5. recognition of the relationship by the community.
   [Id. at 158 (citing Gordon v. Gordon, 342 Md. 294, 308-09 (Sup. Ct. 1996 [↩]