The Sound of Silence: Cohabitation is a Foreseeable Event Required to be Included as Alimony Terminating Language in a Marital Settlement Agreement

In 2014, the New Jersey State Legislature amended the alimony statute, N.J.S.A 2A:34-23, which better addressed the issue of cohabitation.  The amended statute now states as follows:

Alimony may be suspended or terminated if the payee cohabits with another person. Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.

When assessing whether cohabitation is occurring, the court shall consider the following:

(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.

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.

Although it has been addressed in other cases, the Appellate Division in Frick v. Frick, 2016 WL 7030475, (App.Div. 2016) a recent unpublished opinion, held that the cohabitation amendments in the alimony statute will not be applied retroactively to marital settlement agreements that were entered into prior to the 2014 amendments.   The preclusion of retroactive application of the statutory amendments is now nearly self-evident.  It has been addressed in several cases regarding most of the statutory amendments including cohabitation.

While the gravamen of the Frick case centers on the disposition of the retroactive application of the statutory amendments, the fringe of the decision interpreting the parties’ Property Settlement Agreement (“PSA”)(a/k/a marital settlement agreement), and the absence of a provision specifically addressing cohabitation is more interesting. 

In Frick, the parties entered into a PSA in 2009 that provided for a ten year alimony term to be paid from Husband to Wife in the amount of $1,425 per week.  Four years after the divorce, Wife began living exclusively with a man and his two children as a family.   A motion to terminate alimony was filed accordingly.   The parties’ PSA regarding the termination of alimony read as follows:

B. The parties have agreed and intended that alimony shall irrevocably terminate on September [30], 2019, or upon the death of either party, or upon the remarriage of the Wife, whichever is sooner. With regard to said termination, the parties have envisioned and considered any and all foreseeable and unforeseeable events occurring to either of them. The parties have specifically considered increases or decreases in the cost of living, increases or decreases in their incomes, their loss or inability to secure employment, any prospective change of employment, the subsequent acquisition or loss of assets by either of them, the dissipation, whether negligent or not, of the assets received by each of them as and for equitable distribution in this matter, and any other event or events which may or do change the quality of their economic life and have agreed to the unconditional termination of the alimony as set forth herein.

C. The parties acknowledge that the rationale in the cases of Lepis v. Lepis and Crews v. Crews have been explained to them in the sense that a substantial change of circumstances would permit either party to make an application to a court of competent jurisdiction to modify the alimony/spousal support provisions of this Agreement. It is the intention of the parties hereto, that the rationale of the Lepis and Crews cases shall not apply to the extension of the alimony term as set forth herein, for they intend, and they acknowledge that the mutual waivers of alimony/spousal support beyond that period in this Agreement shall express their rights and obligations for now and for all time, despite substantial changes in their monetary circumstances at that time.

The PSA, however, did not specifically address cohabitation or how it would affect spousal support.  The Appellate Division in Frick determined that since the PSA was entered into in 2009, and the amended cohabitation language for suspension or termination of alimony was not enacted until 2014, the statute did not apply retroactively as amended. 

The decision in Frick, however, went much further, indicating that “cohabitation is a foreseeable event.  The court specifically pointed out that the parties’ silence on this foreseeable triggering event to terminate alimony was an implicit waiver.  The court stated:

Insofar as the PSA, we disagree with the Family Part judge. We find cohabitation was waived as a change of circumstances triggering event. The language in the ‘Term Alimony’ section of the PSA, Sections A, C, and D, focuses solely on protecting plaintiff from potential claims that might be made by defendant at the end of the ten-year limited duration alimony term.

Cohabitation is a foreseeable event. By its terms, the agreement excluded it as an event which would trigger early termination of this limited duration alimony. The parties outlined the events which would trigger early termination, and cohabitation was not one of them.

Although an unpublished opinion, the decision has the potential to loudly and profoundly impact existing marital settlement agreements that do not specifically address cohabitation.  One can envision the words “cohabitation is a foreseeable event” becoming a colloquial refrain from bench and bar in future cohabitation cases where the parties’ agreement is ambiguous or silent as to cohabitation as a triggering event, regardless of when the agreement was executed or the context in which the magic word “cohabitation” is excluded.   It is without question that the absence of the specific word  “cohabitation” in an agreement will now become a rallying cry from practitioners defending cohabitation and termination of alimony cases regardless of the context of the agreement. 

It remains to be seen whether old and new marital settlement agreements that do not specifically reference cohabitation as a foreseeable triggering termination provision contain an implicit waiver.  If, however, the Frick requirement that foreseeable triggering events to alimony termination be specifically written in the agreements or lost forever, the sound of silence may become deafening.


Allen J. Scazafabo, Jr. Esq., is a contributor to the Riker Danzig Family Legal Blog and is Board Certified by the New Jersey Supreme Court as a Matrimonial Law Attorney.  As a member of the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP,  Allen practices in Riker Danzig’s Morristown, New Jersey office and focuses his practice on representing clients on issues relating to divorce, equitable distribution, support, custody, domestic violence, premarital agreements and appellate matters. You can reach Allen at 973-451-8428 or ascazafabo@riker.com.