Alimony: Be Careful What You Agree To

By: Melissa E. Cohen, Esq.

In New Jersey, alimony can be modified based upon changed circumstances. One of many changes in circumstances that can occur post-divorce is the recipient's residence with another individual with whom they are engaged in a romantic relationship- commonly referred to as "cohabitation." It is commonly understood that alimony can be modified, suspended or terminated in the event of the recipient's cohabitation. This is a common provision in most divorce agreements and as a practice tip, attorneys usually try to mirror the current state of the law in the language we incorporate into a divorce agreement. As the Court stated in Konzelman v. Konzelman, 158 N.J. 185 (1999) (http://caselaw.findlaw.com/nj-supreme-court/1403632.html) consensual agreements that provide for a termination of alimony in the event of a cohabitation are enforceable.

In the recent case of T.L.H. v. M.H. (https://law.justia.com/cases/new-jersey/appellate-division-unpublished/2017/a4895-15.html ), we learn that when entering into a divorce agreement, one needs to be very careful of the exact language included in a cohabitation provision where alimony is being paid. In that case, the parties had been married for twenty years and were divorced in 2013. They agreed to the terms of alimony - $500.00 per week to be paid from the Husband to the Wife, to increase to $700.00 per week once the marital home was foreclosed upon. However, the cohabitation clause contained additional, unusual language:

The term "cohabitation," in addition to its meaning as construed by New Jersey courts, shall also incorporate the scenario if [plaintiff] should take up residence with any family members (other than the children of the parties) or friends. [Emphasis added]

After losing the house in foreclosure, the former Wife began residing with her sister. The Defendant stopped all alimony payments, and the Plaintiff filed an enforcement application. The former Husband cross moved to terminate his alimony obligation, invoking the cohabitation language in their agreement, claiming that residence with her sister constituted a cohabitation as contemplated by the parties.

The former Wife readily admitted that she was living with her sister, but claimed that "living with someone and cohabiting with them are two different things." She believed that to qualify for cohabitation, there needed to be an element of financial support, which she claimed did not exist because she was paying rent to her sister.

The trial court granted the former Husband's motion on the papers, without oral argument. No Plenary Hearing was conducted. The Court found that there was no reason to modify the parties' own definition of cohabitation in their MSA. The judge opined:

While plaintiff is correct in her assertion that residing with her sister does not rise to the level of cohabitation under Konzelman v. Konzelman, 158 N.J. 185 (1999), her own MSA carves out an express addition to the meaning of cohabitation, which she seemingly chooses to ignore.

The former Wife filed an appeal. She argued that it was an error not to conduct a Plenary Hearing as to the issue of the intent of the alimony language. The Appellate Division disagreed, stressing that the parties had entered into an enforceable agreement containing express language. It has long since been held that when the parties enter into voluntary agreements, the Court favors having them enforced. While residing with her sister would not have been cohabitation as defined by the prevailing case law, including Konzelman, the parties voluntarily obligated themselves to a different standard. As such, the Appellate Division upheld the ruling on the papers.

What do we learn from this case? As practitioners, we need to be very careful that we are not providing stricter obligations on our clients than the law would provide for. If you are going thr ough a divorce, make sure you are careful about the language you include in your agreement. Make sure you understand each and every provision, and ask questions about how it can be construed and applied in the future. The Courts favor upholding consensual agreements, even if the language is more restrictive than a Court would provide. By expanding the definition of cohabitation beyond what the law provides for, the former Wife in T.L.H. v. M.H. lost her alimony when residence with her sister would not otherwise have qualified as cohabitation. Make sure you understand what rights you may be bargaining away.