NEWS Notes green

The Changed Circumstances Standard on an Alimony Modification Application is Alive and Well!

September 20, 2019

MARGARITA ROMANOVA reports on a recent published decision from the Superior Court of New Jersey, Appellate Division.

The Appellate Division recently ruled that the 2014 amendments to the alimony statute did not alter the changed circumstances standard applicable on an alimony modification application based on cohabitation and reversed a trial court’s order that permitted broad and intrusive discovery of the former spouse’s and her new boyfriend’s financial information. 

Following a ten-year marriage, the parties were divorced in 2014, after the effective date of the 2014 amendments to the alimony statute. The Judgment of Divorce incorporated their Marital Settlement Agreement, wherein the Husband agreed to pay the Wife alimony for seven-and-a-half years. The parties agreed that the Wife’s cohabitation, as defined by statutory and case law at the time, shall constitute a basis for the Husband to seek modification or termination of his alimony obligation.

Three years later, the Husband filed a motion to modify or terminate his alimony obligation alleging that his former Wife was cohabitating with the man she has been seeing exclusively for over a year. In the Certification accompanying his motion, the Husband alleged that his former Wife and her boyfriend had traveled together, represented themselves as a couple in social circles and on social media, regularly slept over at each other’s homes and that the boyfriend participated in activities with the parties’ three children. The Husband also alleged that the boyfriend attended family events with the Wife, including family birthday dinners and the parties’ son’s Bar Mitzvah. In fact, the Husband noted that the Wife publicly acknowledged her boyfriend and their relationship in her speech at the son’s Bar Mitzvah. Finally, the Husband hired an individual to surveil the Wife and her boyfriend in an effort to obtain additional evidence of cohabitation. The ex-state trooper hired for this purpose submitted a supporting certification delineating the fruits of his investigation. 

The Wife denied having a relationship tantamount to marriage with her boyfriend and argued that an exclusive relationship does not constitute cohabitation. She acknowledged that she traveled with her boyfriend, explained that they paid their respective travel expenses and did not share those or any other living expenses in their relationship. She acknowledged that they occasionally slept over at one another’s home and emphasized that they did not perform household chores for one another. They vacationed separately with their respective children and attended special events as each other’s “dates.” The Wife contended that she and her boyfriend never discussed the future of their relationship with respect to merging their lives.

Citing the difficulties inherent in proving a cohabitation relationship, the Court avoided deciding whether the Husband met his burden of proof and instead ordered extensive discovery, directing the Wife and her boyfriend to submit to a deposition, to provide extensive information about their respective finances for the preceding two years including, but not limited to, all bank statements, copies of all credit card and charge account records, all travel receipts and even their communications, including text messages and voicemails. The Wife appealed.

On appeal, the Wife argued that the trial court committed reversible error in ordering a proverbial “fishing expedition” and an unwarranted invasion of her privacy through broad financial disclosure without a preliminary finding of cohabitation. The Husband noted the difficulty in proving cohabitation and argued that the 2014 amendment to the alimony statute altered the protocol for deciding support modification applications based on cohabitation entitling him to discovery to aid in obtaining the necessary proofs.

The Appellate Division rejected the Husband’s arguments and reversed the trial court’s decision. The Court ruled that the 2014 amendments to the alimony statute did not alter the long-standing requirement of establishing a prima facie case of cohabitation prior to being entitled to the intimate financial details of the former spouse’s life.

Please contact Margarita Romanova if you have any questions or need assistance in connection with this subject.