United States: Appellate Division Finds Payor Spouse Fails to Fulfill Initial Burden of Proof on Cohabitation Claim

Last Updated: June 9 2016
Article by Robert A. Epstein

As regular readers of this blog may know, cohabitation has been a hot topic of discussion in recent months with several new cases addressing the subject within and beyond the context of the amended alimony law.  With new case law to consume, one question remains constant – how does a payor spouse fulfill his or her initial burden of proving cohabitation so as to justify a period of discovery and a future hearing as to how and whether alimony should be modified (or suspended, or terminated, etc.).

In Robitzski v. Robitzki, another recently issued cohabitation decision from the Appellate Division, the Court affirmed the lower court's findings that the ex-husband/payor spouse failed to present sufficient evidence of a prima facie claim of cohabitation.  Here are the facts that you need to know:

  • The parties were divorced in 2004.  The property settlement agreement required that the ex-husband pay the ex-wife $2,500 in monthly permanent alimony.
  • The agreement also provided that alimony "shall be modified or terminated pursuant to New Jersey statutes and case law" in the event it was proven that the ex-wife was cohabiting with another.  The PSA did not define cohabitation, nor did it specify whether applicable "New Jersey statutes and case law" to be analyzed in such a claim would be those existing at the time of the divorce or those existing if and when the ex-husband filed a motion to address the issue.
  • From the time of the divorce through the subject motion practice, the ex-wife admittedly maintained a lengthy relationship with a significant other.
  • The ex-husband filed his motion after the alimony law was amended in late 2014.  He claimed that the parties were cohabiting under the amended law.
  • The ex-wife cross-moved for a declaration that the 2014 amendments did not apply to the alimony obligation at issue.
  • In support of his motion, wherein the ex-husband claimed the ex-wife and significant other were interdependent upon each other, he claimed that they held themselves out as the "equivalent" of spouses, and provided various items posted publicly on Facebook by the significant other containing photos and commentary of various family and social activities that the significant other engaged in with the ex-wife and her children.  The children referred to the significant other as "Pap Thom."
  • In opposing the motion, the ex-wife certified that the significant other only spent approximately 100 nights out of the year overnight with her, and they maintained separate finances and assets.  She provided copies of bank statements and bills for 2013 and most of 2014 showing the ex-wife paid her bills from her bank account balances, and that there were no deposits from any unaccounted for sources.
  • The trial judge denied the ex-husband's motion, finding that he failed to provide proof of financial interdependency, and the court did not consider the Facebook postings (which the judge deemed inadmissible hearsay and substantially unauthenticated).  The judge also denied application of the amended law to the present matter.
  • Notably, however, limited discovery was granted ordering the significant other to provide a certification addressing his independent living arrangements – including the length of his lease or whether he owns the home, whether he and the ex-wife are co-owners or co-tenants, and whether he lives alone and how he pays for his current living arrangements.  The judge also ordered the ex-wife to provide an accounting of her household expenses, including how such expenses were paid for in 2012.

In addressing whether the amended law or pre-amended law applied, the court declined to resolve the issue for multiple reasons including that the settlement agreement language was ambiguous as to what law should apply.  In language that practitioners thirst for, even if an unreported (not precedential) decision, the Court notably provided:

          Werecognize that the new statute eliminates the modification of alimony as a remedial alternative to termination or suspension upon a finding of cohabitation.

This language will surely provide some degree of guidance, although it is not likely the end of what we will hear about whether modification can still occur.

Ultimately, the court held that whether the new or old law applied, the ex-husband still failed to fulfill his initial burden.  The reasoning was as follows:

  • The ex-wife attested to spending essentially a weekend of overnights each week with the significant other – "far less than the majority of days of the year."  In so doing, the court noted:

          Although we do not treat the frequency of overnights as a dispositive "litmus test" for cohabitation, (and are mindful that subsection (n) of the new statute, if it applied, expressly disallows such per se reasoning) their infrequency here is certainly a significant consideration that bolsters the trial court's conclusion that a prima facie case has not been presented.

  • The Court acknowledged that the Facebook postings reflected that "he and the ex-wife take part with one another in a variety of social and family activities, go on vacations together, and attend graduation ceremonies, family gatherings and other such events together."  The Court noted, however, the postings – even had they been considered by the trial court – were not enough.
  • The Court, added, however, "Even so, the present record lacks any evidence that the couple's finances are intertwined or that the ex-wife is financially dependent upon the significant other."  No proof of joint bank accounts or other joint asset holdings or liabilities.  No proof of shared living expenses.  No proof of any enforceable promise of support.  Little proof of shared household chores with "the exception of occasional snow removal".  Notable, however, is the level of potential difficulty in the ex-husband establishing financial inter-dependency on his initial motion without discovery beyond the limited documents provided by the ex-wife.
  • Concluding its opinion, the Court commented that the ex-husband could make a future application with supplemental proofs that the couple resides together more frequently, or that their lives and finances are "actually more intertwined than what the present record suggest[ed].

Robitzski presents an interesting dilemma for practitioners and litigants looking to fulfill the initial burden of proof associated with a cohabitation claim.  How much is enough?  What is enough?  Every judge will look at the case differently.  Each case has its own set of facts where one component may weigh more heavily than another.  Only time will tell if a valid claim has been raised.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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