In Lepis, supra, the Court accepted as a changed circumstance “the dependent spouse’s cohabitation with another. . . .” 83 N.J. at 151. The Court noted the impact of cohabitation, suggesting “alimony should decrease when circumstances render the original amount unnecessary to maintain the standard of living reflected in the original decree or agreement.” Gayet v. Gayet, 92 N.J. 149, 151 (1983) (citing Lepis, supra, 83 N.J. at 153). The Court identified the essential issue is “[t]he extent of actual economic dependency, not one’s conduct as a cohabitant[.]” Id. at 154.

Our courts have consistently viewed 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 relative permanency within the household, Gayet, supra, 92 N.J. at 155. In Crowe v. De Gioia, 203 N.J. Super. 22 (App. Div. 1985), aff’d o.b., 102 N.J. 50 (1986), we adopted the definition included in Black’s Law Dictionary, that is,

To live together as husband and wife. The mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations[.]

[Id. at 33 (quoting Black's Law Dictionary 236, (5th ed. 1979)).]

The Supreme Court reinforced this definition in Kozelman, supra, stating:

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.
. . . .
A mere romantic, casual or social relationship is not sufficient to justify the enforcement of a settlement agreement provision terminating alimony.

[158 N.J. at 202.]

In Ozolins v. Ozolins, 308 N.J. Super. 243 (App. Div. 1998), the court defined a burden shifting rationale when addressing alimony modification in the event of cohabitation, holding “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. The change in the burden of proof we discussed was triggered once cohabitation was satisfactorily proven.

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To live together as husband and wife is the mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations originally appeared on NJ Family Issues on November 9, 2011.

In Lepis, the Court accepted as a changed circumstance “the dependent spouse’s cohabitation with another . . . .” 83 N.J. at 151. The Court noted the impact of cohabitation, suggesting “alimony should decrease when circumstances render the original amount unnecessary to maintain the standard of living reflected in the original decree or agreement.” Gayet v. Gayet, 92 N.J. 149, 151 (1983) (citing Lepis, supra, 83 N.J. at 153). The Court identified the essential issue is “[t]he extent of actual economic dependency, not one’s conduct as a cohabitant[.]” Id. at 154.

Our courts have consistently viewed 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 relative permanency within the household, Gayet, supra, 92 N.J. at 155. In Crowe v. De Gioia, 203 N.J. Super. 22 (App. Div. 1985), aff’d o.b., 102 N.J. 50 (1986), we adopted the definition included in Black’s Law Dictionary, that is,

To live together as husband and wife. The mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations[.]

[Id. at 33 (quoting Black's Law Dictionary 236, (5th ed. 1979)).]

The Supreme Court reinforced this definition in Kozelman, supra, stating:

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.
. . . .
A mere romantic, casual or social relationship is not sufficient to justify the enforcement of a settlement agreement provision terminating alimony.

[158 N.J. at 202.]

In Ozolins v. Ozolins, 308 N.J. Super. 243 (App. Div. 1998), the court defined a burden shifting rationale when addressing alimony modification in the event of cohabitation, holding “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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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 originally appeared on NJ Family Issues on September 28, 2011.

A court may modify alimony upon a showing of “changed circumstances.” Lepis v. Lepis, 83 N.J. 139, 146 (1980). Cohabitation is a changed circumstance, and forms the basis for an alimony modification if “the relationship has reduced the financial needs of the dependent former spouse.” Gayet v. Gayet, 92 N.J. 149, 150 (1983).

Cohabitation is defined as “a domestic relationship whereby two unmarried adults live as husband and wife.” Konzelman v. Konzelman, 158 N.J. 185, 202 (1999). That is, it is a “close and enduring” relationship, not just a “mere romantic, casual or social relationship,” that “requires more than a common residence, although that is an important factor.” Ibid. Cohabitation occurs when there is an “intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage”; these 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.” Ibid.

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Cohabitation is a changed circumstance, and forms the basis for an alimony modification if the relationship has reduced the financial needs of the dependent former spouse originally appeared on NJ Family Issues on June 1, 2011.

Cohabitation may qualify as “changed circumstances” warranting modification or termination of alimony payments set forth in a PSA. Lepis, supra, 83 N.J. at 151. The PSA need not specifically list cohabitation as a reason for termination; it will be implied when the agreement is silent. Gayet v. Gayet, 92 N.J. 149, 155 (1983).

Cohabitation occurs when there is “an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage,” which 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). In addition, cohabitation requires “stability, permanency and mutual interdependence.” Ibid. The court must evaluate whether the relationship “bears the ‘generic character of a family unit as a relatively permanent household.’” Gayet, supra, 92 N.J. at 155 (quoting State v. Baker, 81 N.J. 99, 108 (1979)). Furthermore, the court has stated “cohabitation is not defined or measured solely or even essentially by ‘sex’ or even by gender.” Konzelman, supra, 158 N.J. at 202.

Absent a contrary provision in the PSA, cohabitation is a changed circumstance only if coupled with economic consequences. Konzelman, supra, 158 N.J. at 196. The economic benefit enuring to either cohabitor must be sufficiently material to justify relief. Gayet, supra, 92 N.J. at 153-54. Under this economic needs test, “the reduction in alimony is granted in proportion to the contribution of the cohabitor to the dependent spouse’s needs.” Konzelman, supra, 158 N.J. at 196.

A prima facie case of cohabitation must be established by the moving party before further discovery or a plenary hearing is needed. Lepis, supra, 83 N.J. at 157. Once a prima facie case is established then the burden of proof shifts to the dependent spouse to contest the alleged cohabitation. Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998). For example, in Gayet, the defendant’s admission that for three and one-half months her paramour stayed overnight at her home approximately four nights a week was enough to warrant further discovery and a plenary hearing analyzing whether there was in fact cohabitation. Gayet, supra, 92 N.J. at 150.

Where there are genuine issues of material fact the trial court judge should hold a plenary hearing. Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div. 1995). “[T]rial judges cannot resolve material factual disputes upon conflicting affidavits and certifications.” Ibid. Only when the trial judge determines that there is no issue of material fact may the issue be decided on the papers. Segal v. Lynch, 417 N.J. Super. 627, 642 (App. Div. 2011).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Cohabitation is a changed circumstance only if coupled with economic consequences originally appeared on NJ Family Issues on May 11, 2011.

Termination or modification of alimony based on the supported spouse’s cohabitation with another is warranted if the new relationship reduces the financial needs of the dependent spouse. Gayet, supra, 92 N.J. at 150. The fact finder must determine if there is a relationship that amounts to cohabitation, Konzelman v. Konzelman, 158 N.J. 185, 202 (1999), which results in “actual economic benefit to the spouse or the cohabitant.” Ozolins, supra, 308 N.J. Super. at 245.

Cohabitation is “a domestic relationship whereby two unmarried adults live as husband and wife.” Konzelman, supra, 158 N.J. at 202. It involves a “close and enduring” relationship that “requires more than a common residence, although that is an important factor.” Ibid. Cohabitation is “an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage.” These include, but are not restricted 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.” Ibid. Thus, cohabitation is more than “[a] mere romantic, casual or social relationship,” but has “stability, permanency and mutual interdependence.” Ibid. “[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, supra, 308 N.J. Super. at 245.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Cohabitation is a domestic relationship whereby two unmarried adults live as husband and wife originally appeared on NJ Family Issues on May 3, 2011.

Cohabitation is sufficient grounds for the termination or modification of alimony, limited duration or otherwise, where the cohabitation provides the dependent spouse with a sufficiently material economic benefit. See Konzelman, supra, 158 N.J. at 196; Gayet v. Gayet, 92 N.J. 149, 153-55 (1983); Ozolins v. Ozolins, 308 N.J. Super. 243, 248 (App. Div. 1998).

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Cohabitation is sufficient grounds for the termination or modification of alimony, limited duration or otherwise, where the cohabitation provides the dependent spouse with a sufficiently material economic benefit originally appeared on NJ Family Issues on April 19, 2011.

It is clear that an alimony award is “subject to . . . modification on a showing of ‘changed circumstances’”. Lepis v. Lepis, 83 N.J. 139, 146 (1980). A changed circumstances that courts consider is a “dependent’s spouse’s cohabitation with another.” Id. at 151. Modification is appropriate when a cohabitant contributes to support of a dependent spouse. Gayet v. Gayet, 92 N.J. 149, 153-55 (1983). Where a supporting spouse makes “a prima facie showing of cohabitation,” a rebuttal presumption arises and shifts the burden of proof “to the dependent spouse to show that there is no actual economic benefit” from the cohabitation. Ozolins v. Ozolins, 308 N.J. Super. 243, 245, 248-49 (App. Div. 1998). As the court said in Ozolins, “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)).

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

Modification is appropriate when a cohabitant contributes to support of a dependent spouse originally appeared on NJ Family Issues on April 4, 2011.

Termination or modification of alimony based on the supported spouse’s cohabitation with another is warranted if the new relationship reduces the financial needs of the dependent spouse. Gayet v. Gayet, 92 N.J. 149, 150 (1983). There are two inquiries: one, is there a relationship that amounts to cohabitation, Konzelman v. Konzelman, 158 N.J. 185, 202 (1999); and two, does the supported spouse’s new relationship result in “actual economic benefit to the spouse or the cohabitant,” Ozolins v. Ozolins, 308 N.J. Super. 243, 245 (App. Div. 1998).

In this context, cohabitation has a particular meaning. Cohabitation is “a domestic relationship whereby two unmarried adults live as husband and wife.” Konzelman, supra, 158 N.J. at 202. It is a “close and enduring” relationship that “requires more than a common residence, although that is an important factor.” Ibid. It is an “intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage”; these 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.” Ibid. Cohabitation is more than a “mere romantic, casual or social relationship” but has “stability, permanency and mutual interdependence.” Ibid.

In terms of the evidentiary burdens, 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, supra, 308 N.J. Super. at 245.

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Cohabitation is more than a mere romantic, casual or social relationship but has stability, permanency and mutual interdependence originally appeared on NJ Family Issues on March 28, 2011.

A mere dating or romantic relationship is not alone sufficient to cause a termination of alimony.

Cohabitation requires much more, namely, “stability, permanency and mutual interdependence,” Konzelman v. Konzelman, 158 N.J. 185, 202 (1999), and whether the couple “bears the `generic character of a family unit as a relatively permanent household,’” Gayet v. Gayet, 92 N.J. 149, 155 (1983) (quoting State v. Baker, 81 N.J. 99, 108 (1979)). In essence, cohabitation requires proof of “an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage,” which 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.

Where evidence suggests cohabitation, the former spouse should be entitled to discovery into areas that are critical to a finding of cohabitation. Without discovery, a former spouse is ordinarily incapable of showing the intertwining of offenses or evidence of how the couple is viewed socially. A former spouse should not be denied relief because the information he required was uniquely in possession only of the other former spouse and her friend. See, e.g., Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 76 (1954) (“sound[ing],” with regard to the summary judgment procedure, “a note of caution . . . as to any case where the opposing party must prove his claim or defense from what he can draw from the other party”).

Discovery is appropriate into critical areas, such as whether the alleged cohabitors have intertwined finances, whether they share living expenses and household chores, and whether there has been “recognition of the relationship in the couple’s social and family circle.” Konzelman, supra, 158 N.J. at 202.

See related Blog Post by Sandra C. Fava, Esq.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

A mere dating or romantic relationship is not alone sufficient to cause a termination of alimony originally appeared on NJ Family Issues on February 9, 2011.

Ordinarily, modifications of support orders are made based on changed circumstances as defined by Lepis v. Lepis, 83 N.J. 139 (1980). This includes the changed circumstances resulting from the dependent spouse’s cohabitation. Id. at 151.

If the parties agree that a change in circumstances as defined in a PSA will terminate alimony, “the court should defer to the arrangements undertaken by the parties.” Konzelman, supra, 158 N.J. at 197.

Konzelman v. Konzelman, 158 N.J. 185 (1999), defines a change of circumstances requiring review of an alimony obligation in this context as an enduring social relationship “coupled with economic consequences . . . .” Id. at 196. The economic consequences “must be sufficiently material to justify relief.” Ibid.

A fair reading of Konzelman requires the completion of discovery and a plenary hearing to resolve whether plaintiff’s cohabitation results in economic consequences which warrant an adjustment to defendant’s alimony obligation. See Konzelman, supra, 158 N.J. at 202.

Once defendant proved that plaintiff’s relationship has lasted for three years, that the paramour spends most nights at plaintiff’s home, that he has a positive relationship with the parties’ children and plaintiff’s family, and that, at least from appearances, the situation is more like a marriage than a casual social connection, defendant is entitled to discovery and a hearing.

In order for an equitable assessment of the economic consequences resulting from plaintiff’s relationships, discovery and a plenary hearing must be conducted. See Conlon v. Conlon, 335 N.J. Super. 638, 649-50 (Ch. Div. 2000). The burden is now upon plaintiff to rebut the presumption of changed circumstances arising from defendant’s prima facie showing. Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998). “When a genuine issue of material fact exists, a plenary hearing is required.” Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006) (citing Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976)).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Ordinarily, modifications of support orders are made based on changed circumstances; this includes the changed circumstances resulting from the dependent spouse’s cohabitation originally appeared on NJ Family Issues on November 10, 2010.