Ambiguities related to the interaction between cohabitation-based alimony modifications and the 2014 amendments to New Jersey’s alimony statute have abounded until the Appellate Court weighed in with a fairly recent decision. This decision affects any ex-spouses who pay or receive alimony, when the recipient spouse has entered a new relationship that is serious enough to be considered tantamount to marriage.
In Robitzski v. Robitzski, the ex-spouses were divorced in 2004. As part of their property settlement agreement (“PSA”) the ex-husband agreed to pay the ex-wife $30,000 annually in alimony. The parties agreed in the PSA that alimony would terminate upon the happening of specified events. For example, the PSA provides that alimony “shall be modified or terminated pursuant to New Jersey statutes and case law” in the event it is proven that the ex-wife cohabits with another person. The PSA neither defines cohabitation nor makes clear whether the law as it existed in 2004 or the current law should be applied at the time when the ex-husband files a motion for modification or termination. This ambiguity is relevant because, since 2004, New Jersey’s alimony statute has been amended.
Prior to the Legislature’s adoption of amendments to the alimony statute in 2014, the legal criteria for cohabitation was embodied exclusively in case law. Cohabitation was typified by the existence of a marriage-like relationship requiring more than a common residence or sexual relationship. The standard did not provide black and white criteria, but required factors, such as living together and sharing joint finances, to be viewed in the totality of the circumstances.
In 2014, the Legislature codified factors to be used to determine whether cohabitation exists:
(1) Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
(2) Sharing or joint responsibility for living expenses;
(3) Recognition of the relationship in the couple's social and family circle;
(4) Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;
(5) Sharing household chores;
(6) Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S.25:1-5; and
(7) All other relevant evidence.
The statute further provides that “in evaluating whether cohabitation is occurring and whether alimony should be suspended or terminated, the court shall also consider the length of the relationship. A court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis.”
The procedural requirements for proving cohabitation are the same pre- and post-2014 amendments. The payor spouse must make a prima facie showing of cohabitation. If the payor spouse meets his or her burden, it creates a rebuttable presumption that cohabitation is occurring. The parties then engage in mutual discovery, through which the recipient spouse has the opportunity to overcome the rebuttable presumption by demonstrating that the need for spousal support remains.
In Robitzski, it was undisputed that the ex-wife maintained a longstanding relationship with a significant other. However, the ex-wife asserted that she did not cohabit with her significant other, as they maintained separate residences, only spent approximately 100 nights per year together and maintained separate finances. The ex-husband offered proof of cohabitation in part through Facebook posts, showing the ex-wife and significant other attending various family and social events together.
The trial court found that the ex-husband failed to make a prima facie showing of cohabitation, but granted him limited discovery. Moreover, the trial court disregarded the Facebook posts as unauthenticated, inadmissible hearsay. On appeal, the ex-husband argued that: (1) the trial court should have ordered full discovery; (2) the Facebook posts should have been admissible; and (3) the 2014 amendments to the alimony statute should have applied retroactively to his request for modification.
With respect to the first issue, the Court found that the trial judge did not abuse his discretion in ordering limited discovery, as the ex-husband had failed to make a prima facie showing under either the pre- or post- 2014 standard. In so holding, the Court noted the unrefuted evidence that the ex-wife spent less than a majority of nights with her significant other and that there was no comingling of finances. The Court did not reach the merits of the hearsay issue because, even considering such evidence, the ex-husband had failed to meet his burden of proof.
Similarly, the Court did not reach the merits of the retroactivity issue, finding that the ex-husband had failed to meet his burden under either standard. The Court noted that the PSA is arguably ambiguous as to whether the phrase in which the parties agreed to allow alimony to be modified or terminated “pursuant to New Jersey statutes and case law” encompasses future statutory changes in the law, such as the 2014 amendments, or whether it freezes the parties’ obligations to be governed by the law as it existed when the PSA was executed. The Court noted that the Appellate Division had recently declined to apply the retroactivity provisions of the alimony statute to a PSA where the parties agreed that alimony would be subject to review “consistent with the Gayet v. Gayet case and evolving case law.” The court therefore alluded to the fact that it would honor clear language within the PSA with respect to retroactivity.
Ultimately, the Appellate Division substantially affirmed the trial court’s ruling, noting that nothing precludes the ex-husband from making a future attempt to establish a prima facie case with supplemental proofs showing, for example, that the couple resides together for a more substantial proportion of time than two nights a week or that their lives and finances are more intertwined than the present record reflects.
This decision offers a number of practice points for divorcing or divorced parties where cohabitation may become an issue. First, the decision notes that the 2014 amendments do not change the fact that a payor spouse has a significant burden with respect to proving cohabitation. Even a serious romantic relationship will not rise to the level of cohabitation sufficient to modify an alimony obligation unless the relationship is tantamount to marriage. Second, a payor spouse must offer sufficient proof that cohabitation exists. It is possible that a party may gather all or most information related to their ex-spouse’s current lifestyle through social media, such as Facebook posts. Whether such evidence is admissible to prove cohabitation was not determined in Robitzski, but it is clear that photos and posts evidencing shared experiences alone will be insufficient to meet the payor’s burden. Third, and in my opinion most important, divorcing parties should carefully consider the language of their PSA and decide whether alimony modifications should be governed by then-existing or future law. By drafting the PSA to address possible retroactivity of changed laws, the parties can bargain for the law they would like to apply, if and when a motion for alimony modification or termination is made.
Sandra C. Fava is the editor of the Riker Danzig Family Law Blog and heads the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP. Sandra is resident in Riker Danzig's Morristown, New Jersey office though she practices throughout New Jersey. You can reach Sandra at (973) 451-8453, or firstname.lastname@example.org.