In Gayet v. Gayet, 92 N.J. 149, 154-55 (1983), the Court held that “cohabitation” was a changed circumstance under Lepis v. Lepis, 83 N.J. 139, 150-53 (1980).

If plaintiff cohabits with another woman, defendant will have the opportunity to seek a reduction in alimony by obtaining discovery and showing either that plaintiff’s economic needs have decreased because the woman is contributing to his support, or that he is subsidizing her at defendant’s expense. It is impermissible for the court to assume in advance, and in the absence of a factual context, that cohabitation would eliminate plaintiff’s need.
[Boardman v. Boardman, 314 N.J. Super. 340, 347 (App. Div. 1998).]

A dating relationship alone does not give rise to a claim to terminate alimony. Konzelman, supra, 158 N.J. at 202. Rather, “cohabitation” is a prerequisite to recovery precisely because it involves much more, as it is predicated on a relationship that enjoys “stability, permanency and mutual interdependence.” Ibid. Indeed, to determine the “true nature of the relationship,” one looks at whether the couple “bears the ‘generic character of a family unit as a relatively permanent household.’” Gayet, supra, 92 N.J. at 155 (internal citation omitted). This includes:

those factors that make the relationship close and enduring and requires more than a common residence, although that is an important factor. Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These 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.

[Konzelman, supra, 158 N.J. at 202.]

Generally, the burden of proving changed circumstances rests upon the party seeking to modify the support obligation. Lepis, supra, 83 N.J. at 157. A dependent spouse’s cohabitation with another party has been recognized as changed circumstances warranting modification of a support obligation. Id. at 151.

Changed circumstances resulting from a dependent spouse’s cohabitation warrant modification “when (1) the third party contributes to the dependent spouse’s support, or (2) the third party resides in the dependent spouse’s home without contributing anything toward the household expenses.” Gayet, supra, 92 N.J. at 153. Simply stated, modification is required “only if one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief.” Id. at 153-54.

Generally, economic contribution by the cohabitee is the primary factor in determining whether cohabitation by the dependant spouse should reduce an alimony award. Melletz v. Melletz, 271 N.J. Super. 359, 363 (App. Div.), certif. denied, 137 N.J. 307 (1994). The test is “‘whether the relationship has reduced the financial needs of the dependent former spouse.’” Ibid. (quoting Gayet, supra, 92 N.J. at 150).

“[A] rebuttable presumption of changed circumstances [arises] upon a prima facie showing of cohabitation. The burden of proof, which is ordinarily on the party seeking modification, shifts to the dependent spouse” to show that he or she has not derived an economic benefit from the cohabitation. Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998). The reason for this shift in the burden of proof from the party seeking modification to the dependent spouse is because “‘it would be unreasonable to place the burden of proof on a party not having access to the evidence necessary to support that burden of proof.’” Id. at 249 (quoting Frantz v. Frantz, 256 N.J. Super. 90, 93 (Ch. Div. 1992)).

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The law on modification of alimony based on the supported spouse’s cohabitation is well-settled. Where the parties have not provided otherwise by agreement, alimony may be modified based on “changed circumstances resulting from cohabitation only if one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief.” Gayet v. Gayet, 92 N.J. 149, 153-54 (1983). There is no need for additional explanation beyond the clear statement provided in Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998):

An alimony award is subject to modification when there has been a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139 (1980). Among the changed circumstances to be considered by trial courts is “the dependent spouse’s cohabitation with another . . . .” Id. at 151. However, although cohabitation by a supported spouse may constitute changed circumstances justifying discovery and an evidentiary hearing, modification is called for when “(1) the [cohabitant] contributes to the dependent spouse’s support or (2) the [cohabitant] resides in the dependent spouse’s home without contributing anything toward the household expenses.” Gayet[, supra], 92 N.J. [at] 153 (citing Garlinger v. Garlinger, 137 N.J. Super. 56, 64 (App. Div. 1975)).
. . . .
There is a rebuttable presumption of changed circumstances arising upon a prima facie showing of cohabitation. The burden of proof, which is ordinarily on the party seeking modification, shifts to the dependent spouse. . . .

[Blue v. Blue, No. A-3308-06 (App. Div. November 14, 2007), at 7-8.]

“The extent of actual economic dependency . . . must determine the duration of support as well as its amount.” Gayet, supra, 92 N.J. at 154.

Under an economic needs test (i.e., the economic benefit enuring to [plaintiff] . . . [is] sufficiently material to justify relief) the reduction in alimony is granted in proportion to the contribution of the cohabitor. Konzelman v. Konzelman, 158 N.J. 185, 196 (1999).

“[T]he autonomous decision of the dependent former spouse to form new bonds creating mutual obligations of support must be recognized, and should, therefore, supplant the legal vestiges of the prior marriage.” Ibid.

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Courts may modify alimony awards after parties have divorced, “as circumstances may require.” Innes v. Innes, 117 N.J. 496, 503 (1990) (quoting N.J.S.A. 2A:34-23). Generally, the burden of proving changed circumstances rests upon the party seeking to modify the support obligation. Lepis v. Lepis, 83 N.J. 139, 157 (1980). A dependent spouse’s cohabitation with another party has been recognized as changed circumstances warranting modification of a support obligation. Id. at 151. Changed circumstances resulting from a dependent spouse’s cohabitation warrant modification “when (1) the third party contributes to the dependent spouse’s support, or (2) the third party resides in the dependent spouse’s home without contributing anything toward the household expenses.” Gayet v. Gayet, 92 N.J. 149, 153 (1983). Simply stated, modification is required “only if one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief.” Id. at 153-54.

Generally, economic contribution by the cohabitee is the primary factor in determining whether cohabitation by the dependant spouse should reduce an alimony award. Melletz v. Melletz, 271 N.J. Super. 359, 363 (App. Div.), certif. denied, 137 N.J. 307 (1994). The test is “whether the relationship has reduced the financial needs of the dependent former spouse.” Ibid. (quoting Gayet, 92 N.J. Super. at 150).

“[A] rebuttable presumption of changed circumstances [arises] upon a prima facie showing of cohabitation. The burden of proof, which is ordinarily on the party seeking modification, shifts to the dependent spouse” to show that he or she has not derived an economic benefit from the cohabitation. Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998). The reason for this shift in the burden of proof from the party seeking modification to the dependent spouse is because “it would be unreasonable to place the burden of proof on a party not having access to the evidence necessary to support that burden of proof.” Id. at 249 (quoting Frantz v. Frantz, 256 N.J. Super. 90, 93 (Ch. Div. 1992)).

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Alimony and support orders define only the present obligations of the former spouses, those duties are always subject to review and modification on a showing of ‘changed circumstances.’ Lepis v. Lepis, 83 N.J. 139, 146 (1980). Importantly, consensual agreements and judicial decrees are reviewed under the same standard of changed circumstances. Id. at 148. Thus, “the extent of the change in circumstances, whether urged by plaintiff or defendant, shall be the same, regardless of whether the support payments being questioned were determined consensually or by judicial decree.” Smith v. Smith, 72 N.J. 350, 360 (1977).

Where the PSA is “silent on the issue of cohabitation and its impact on spousal support,” the court must “decide the issue based on decisional law rather than by construing the settlement agreement.” Ozolins v. Ozolins, 308 N.J. Super. 243, 247-48 (App. Div. 1998).

An application for modification of a PSA is governed by the same standard as the original judgment of divorce. Miller v. Miller, 160 N.J. 408, 420 (1999). That is, “[w]hen support of an economically dependent spouse is at issue, the general considerations are the dependent spouse’s needs, that spouse’s ability to contribute to the fulfillment of those needs, and the supporting spouse’s ability to maintain the dependent spouse at the former standard.” Lepis, supra, 83 N.J. at 152.

“[O]ne of the procedural prerequisites to discovery and a hearing in a modification proceeding under Lepis is an initial showing of changed circumstances.” Gayet v. Gayet, 92 N.J. 149, 155 (1983). Cohabitation constitutes such changed circumstances. Ibid.; see also Ozolins, supra, 308 N.J. Super. at 248 (citing Lepis, supra, 83 N.J. at 151) (“[C]ohabitation by a supported spouse may constitute changed circumstances justifying discovery and an evidentiary hearing.”). The test for whether cohabitation warrants modification of the alimony award is based on economic needs. Gayet, supra, 92 N.J. at 155.

A decrease in alimony is appropriate “when circumstances render all or a portion of support received unnecessary for maintaining” the “standard of living reflected in the original decree or agreement.” Lepis, supra, 83 N.J. at 153. Alimony modification is appropriate where “‘(1) the [cohabitant] contributes to the dependent spouse’s support, or (2) the [cohabitant] resides in the dependent spouse’s home without contributing anything toward the household expenses.’” Ozolins, supra, 308 N.J. Super. at 248 (quoting Gayet, supra, 92 N.J. at 153).

Significantly, “a showing of cohabitation creates a rebuttable presumption of changed circumstances shifting the burden to the dependent spouse to show that there is no actual economic benefit to the spouse or the cohabitant.” Id. at 245.

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The mere fact of cohabitation does not warrant modification or termination of alimony; but, “once cohabitation has been shown the burden shifted to the defendant spouse to show that termination or modification is not warranted.” (Ozolins v. Ozolins, 308 N.J. Super. 243, 247-49 (App. Div. 1998)).

An award for alimony is always subject to review for modification upon a showing of “changed circumstances.” Lepis v. Lepis, 83 N.J. 139, 148 (1980). Among the recognized “changed circumstances,” which trial courts should review is “dependent spouse’s cohabitation with another.” Id. at 151.

Cohabitation by a supported spouse may justify discovery and a plenary hearing. Id. at 157-59. Modification should be granted “when (1) the third party contributes to the dependent spouse’s support, or (2) the third party resides in the dependent spouse’s home without contributing anything toward the household expenses.” Gayet, supra, 92 N.J. at 153. See also Garlinger v. Garlinger, 137 N.J. Super. 56, 64 (App. Div. 1975); Ozolins, supra, 308 N.J. Super. at 248.

Cohabitation may justify modification or termination of alimony “only if one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief.” Gayet, supra, 92 N.J. at 153-54; see also Pugh v. Pugh, 216 N.J. Super. 421 (App. Div. 1987); Wertlake v. Wertlake, 137 N.J. Super. 476 (App. Div. 1975); Eames v. Eames, 153 N.J. Super. 99 (Ch. Div. 1976); Grossman v. Grossman, 128 N.J. Super. 193 (Ch. Div. 1974); Edelman v. Edelman, 124 N.J. Super. 198 (Ch. Div. 1973).

Where, despite cohabitation, ex-wife has remained financially dependent on alimony to meet her needs, this dependence may be self-created. If she permits the new relationship to live with her in her house but does not demand any contribution from him, to some extent, she is supporting him. If she were financially independent, this would be her choice. However, she cannot compel ex-husband to support her new relationship to any extent.

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In Gayet v. Gayet, 92 N.J. 149 (1983), the Court held that “cohabitation” was a changed circumstance under Lepis v. Lepis, 83 N.J. 139, 159 (1980). If the payor spouse can prove cohabitation of the payee spouse, the payor can seek a reduction in alimony by showing either the payee’s economic needs have decreased due to the financial assistance of another or by showing the payor’s alimony payments are subsidizing the third-party cohabitant. Boardman v. Boardman, 314 N.J. Super. 340, 347 (App. Div. 1998).

Obviously, not every dating relationship gives rise to a claim to terminate alimony, lest we infringe on the right to develop personal relationships. Gayet, supra, 92 N.J. at 151; Konzelman v. Konzelman, 158 N.J. 185, 202 (1999). Rather, “cohabitation” is a prerequisite to recovery precisely because it involves much more, predicated, as it is, on a relationship that enjoys “stability, permanency and mutual interdependence.” Ibid. Indeed, to determine the “true nature of the relationship,” one looks at whether the couple “bears the ‘generic character of a family unit as a relatively permanent household.’” Gayet, supra, 92 N.J. at 155. This includes:
those factors that make the relationship close and enduring and requires more than a common residence, although that is an important factor. Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These 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.
[Konzelman, supra, 158 N.J. at 202.]

In Pugh v. Pugh, 216 N.J. Super. 421, 424 (App. Div. 1987), the court held that an ex-wife whose male friend spent approximately three out of four weekends of the month with her at the former marital house was not “living with” a non-related adult male within the meaning of a provision of the property settlement agreement requiring sale of the marital home under such circumstances. There, the ex-wife and friend were not continuously together, had not established a single economic or domestic unit, and her friend maintained a separate residence at which he had custody of his own minor child. Ibid.

If a payor spouse is able to establish cohabitation, the burden of proof shifts to the payee spouse. Frantz v. Frantz, 256 N.J. Super. 90, 93 (Ch. Div. 1992). By the same token, a movant seeking modification must first make a prima facie showing of cohabitation before a court will order discovery and a plenary hearing. Cf. Lepis, supra, 83 N.J. at 157. “An inflexible rule requiring a plenary hearing on every application for a modification of a judgment or order relating to alimony or support would impede the sound administration of justice, impose an intolerable burden upon our trial judges, and place an undue financial burden upon the litigants.” Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976).

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A party seeking modification of alimony based on cohabitation must first establish a prima facie case before proceeding to discovery and a plenary hearing. Lepis v. Lepis, 83 N.J. 139, 157 (1980). Where a fair and equitable PSA provides for termination of alimony upon cohabitation, “the court need not delve into the economic needs of the dependent spouse.” Konzelman v. Konzelman, 158 N.J. 185, 197 (1999). The supporting spouse need only show that the dependent spouse has entered into a new marriage-like relationship. Ibid.
A mere romantic, casual or social relationship is not sufficient to justify the enforcement of a settlement agreement provision terminating alimony. Such an agreement must be predicated on a relationship of cohabitation that can be shown to have stability, permanency and mutual interdependence. The Appellate Division has expressed that standard by defining cohabitation as a domestic relationship whereby two unmarried adults live as husband and wife. [] Cohabitation is not defined or measured solely or even essentially by “sex” or even gender, as implied by the dissent. [] The ordinary understanding of cohabitation is based on those factors that make the relationship close and enduring and requires more than a common residence, although that is an important factor. Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These 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. at 202.]

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In this case, the application by defendant to modify alimony was triggered by plaintiff’s move, with the children and a cohabitant, to Pennsylvania. In reliance on Stamberg v. Stamberg, 302 N.J. Super. 35 (App. Div. 1997), the motion judge denied the requested relief. He found that as a matter of law, defendant had to establish a prima facie case of “changed circumstances.” See Lepis v. Lepis, 83 N.J. 139 (1980). Because he concluded that defendant had not established a change in plaintiff’s circumstances subsequent to entry of a prior consent order reducing alimony, no order for discovery was entered and a plenary hearing was not scheduled. As the motion judge noted, the only facts that defendant proffered were that two-and-one-half years had elapsed since the date of the consent order and that plaintiff had moved to another state. Absent factual allegations of enhanced lifestyle, the motion judge reasoned, there was no basis to award relief.

In Stamberg, a remand to the Family Court was ordered so that a payor could detail his source of knowledge about the alimony recipient’s alleged inheritance before the court considered the discovery request in a change of circumstances case. Stamberg, 302 N.J. Super. at 43. The payor was required to “only outline the basis of his allegation in general terms” by certifying as to his knowledge of his in-laws’ holdings, their lifestyle, prior gifts, and evidence from any other source as to the nature of the inheritance. Ibid. Once the payor supplied the additional information, the Family Court judge would have a sufficient basis to assess the alimony recipient’s response and to determine if the payor had established a prima facie showing of changed circumstances such as would warrant full discovery. Id. at 43-44.

Cohabitation means more than residence under one roof:
Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These 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.
[Konzelman v. Konzelman, 158 N.J. 185, 202 (1999).]

It is the financial impact of cohabitation, not the relationship itself, that triggers review of alimony obligations. Gayet v. Gayet, 92 N.J. 149, 155 (1983). In this case, however, the extent to which the affairs of plaintiff and her cohabitant are economically intertwined is unknown. It would have been preferable for the parties to have clarified plaintiff’s financial picture when they previously agreed to the reduction in alimony payments. See, e.g., Weishaus v. Weishaus, 180 N.J. 131, 144 (2004) (stating that while a trial court need not make findings as to the marital standard of living upon a mutually agreed-upon settlement, it “should take steps to capture and preserve the information that is available”).

“[A] showing of cohabitation creates a rebuttable presumption of changed circumstances shifting the burden to the dependent spouse to show that there is no actual economic benefit to the spouse or the cohabitant.” Ozolins v. Ozolins, 308 N.J. Super. 243, 245 (App. Div. 1998). Once that rebuttable presumption is raised, the dependent spouse must establish that the cohabitation has no impact on his or her financial needs.

Now, for defendant to establish a prima facie case of changed circumstances, he must identify some alteration in plaintiff’s lifestyle since the previous consent order, greater than just a change of address.

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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

Under the common law, 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. 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.

[Konzelman v. Konzelman, 307 N.J. Super. 150, 157-58 (App. Div. 1998) (citing Gordon v. Gordon, 342 Md. 294, 308-09 (Sup. Ct. 1996)).]

Thus, courts view cohabitation as “tantamount to a marriage[,]” id. at 160, where the couple acts as a “family unit” and there is a relative permanency within the household. Gayet v. Gayet, 92 N.J. 149, 155 (1983).

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, 649-650 (Ch. Div. 2000). The test is whether one cohabitant “subsidizes” the other enough to warrant relief. Boardman v. Boardman, 314 N.J. Super. 340, 347 (App. Div. 1998). This would result in “some assemblage of a single economic unit.” Pugh v. Pugh, 216 N.J. Super. 421, 425-426 (App. Div. 1987).

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