My Ex-wife May Be Living With Someone. What Is the Current Status of New Jersey Law?

If you are in the process of divorcing, what issues should you incorporate into your divorce agreement about alimony in the future? How do you balance the need for support versus moving on in life? Read on to see the current state of the law on cohabitation and its effect on the continued payment of alimony.

Since the New Jersey alimony statute (N.J.S.A. 2A:34-23) was amended and took effect in September 2014, attorneys have been waiting for case law to develop to help define and clarify some of the new or revised legal concepts. Once such case has been Robitzski v. Robitzski, A-2818-14T3, which was decided by the Appellate Division on May 5, 2016. In this case, the Appellate Division upheld the lower Court's decision that an alimony payor failed to establish a prima facie case of cohabitation. The parties had been divorced in 2004, with the former husband obligated to pay alimony. The parties agreed that alimony "shall be modified or terminated pursuant to New Jersey statutes and case law" if the wife cohabited in the future. The former husband presented evidence that his former spouse spent overnights with her significant other 100 to 110 overnights per year. The trial Court had denied the former husband's motion, determining that he failed to make a prima facie showing of changed circumstances. However, limited discovery was ordered even though the motion judge found that no prima facie evidence existed.

In this case, the parties called upon the Court to determine several issues that could have been implicated by the amended alimony statute: (a) whether the new statute applies to alimony provisions in a divorce agreement that was entered in 2004; (b) whether the cohabitation section of the amended alimony statute provides a less stringent standard to prove cohabitation and its effect on alimony. Another interesting issue was whether the Court could rely upon the Facebook postings of the former wife's significant other in assessing whether cohabitation existed or whether the Facebook postings of a third party are inadmissible hearsay.

The Appellate Division declined to decide any of these interesting issues. The parties' divorce agreement was silent on whether future cohabitation issues would be addressed by then existing law in 2004 when the parties were divorced, or whether it would be based upon the law at the time of interpretation. The Appellate Division also did not take a position as to whether the amended alimony statute made it less burdensome on a payor to prove cohabitation. The Appellate Division agreed with the lower Court that the payor did not meet his burden of proof to establish that a prima facie showing of cohabitation existed, under both the old and new legal standards. Although there was evidence of overnights, they amounted to what was essentially weekend time together only. Moreover, there was no evidence presented that the former wife had intertwined her finances with her significant other, which is an essential element of a finding of cohabitation under both the old and new statutes.

The Appellate Division also did not reach the issue of whether print outs from the third party's Facebook page could be considered by the motion judge, and whether these were an exception to the hearsay rule. It would have been very interesting to see whether the Court would have found the Facebook entries admissible. This is yet another reason to always be cautious with what you are posting on social media.

Stay tuned to see how the case law develops to see what changes the amended alimony statute brings.