Litigating Cohabitation Under NJ's Amended Alimony Law

After years of legislative debate, alimony reform arrived in New Jersey on Sept. 10, 2014, when Gov. Chris Christie signed into law a bill that went into immediate effect and substantially amended various provisions of New Jersey's alimony law, N.J.S.A. 2A:34-23.

While much of the attention has focused on changes to the durational component of alimony, other substantial changes to the law were made regarding the ability to modify an existing or future alimony obligation in the event of the payor's retirement, the payor's down income and the payee's cohabitation, the last of which is the focus of this article.

As a threshold matter, while the new law applies only to ongoing or future divorces when setting an initial alimony award, it also applies to previously settled or adjudicated matters when there exists a request to modify alimony. An interesting question arises, however, regarding what law applies when an existing settlement agreement provides that the issue of cohabitation will be decided pursuant to the seminal cases (often specifically named in the agreement itself) that existed pre-amendment. Quite frankly, this language, or some variation thereof, is very commonly found in agreements. The language in those situations was bargained for as part of an amicable resolution because that was all we as attorneys knew of at the time. Now that same language, if not couched appropriately, could potentially preclude application of the amended statute should the issue of cohabitation arise. Thus, even with the amended law taking its place, the prior law may still apply in many cases where a prior agreement exists addressing the issue.

The first step to determine whether support should be modified based on cohabitation is to understand the meaning of "cohabitation." In Konzelman v. Konzelman, 158 N.J. 185, 202 (1999), and Gayet v. Gayet, 92 N.J. 149, 155 (1983), the Supreme Court described cohabitation as follows:

An "intimate," "close and enduring" relationship that requires "more than a common residence" or mere sexual liaison. The relationship "bears the generic character of a family unit as a relatively permanent household," is "serious and lasting," and reflects the "stability, permanency and mutual interdependence" of a single household. It involves conduct whereby "the couple has undertaken duties and privileges that are commonly associated with marriage." Indicia may include, but are not limited to, long-term intimate or romantic...