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The Uphill Battle In Proving Cohabitation

June 14, 2019

MARGARITA ROMANOVA reports on a recent unpublished decision from the Superior Court of New Jersey, Appellate Division.

In a recent unpublished decision, the Appellate Division affirmed the trial court’s determination that the payor spouse failed to present sufficient evidence of cohabitation to warrant suspension or termination of his alimony obligation.

Prior to the parties’ divorce in 2013 (and during their separation), the wife began a romantic relationship with her paramour, and they had a child together shortly thereafter. Two years after the parties’ divorce, the husband hired a private investigator to conduct surveillance of his wife’s alleged cohabitation with her paramour.

At the plenary hearing, the investigator testified that the paramour drove the parties’ son to school in the morning, entered and exited the wife’s home freely, stayed in the home when wife was not present, entertained guests in the wife’s backyard and performed outside household chores. The investigator also testified that the paramour’s vehicle was parked overnight at the wife’s home “almost every night.” A cell phone expert retained by the husband to track the locations of the paramour’s phone usage determined that twenty-nine percent of the paramour’s calls or data usage originated from the wife’s residence. Apparently, during the husband’s investigation, there was a total of 290,000 photographs taken of the paramour, the parties’ child and of the child the wife had with the paramour.

The wife testified at the plenary hearing and confirmed that her paramour drove her son and daughter to daycare, school and other activities. She denied having a joint checking or savings account or joint credit cards with the paramour. She further testified that the paramour did not contribute to her monthly rent.

The Court found both experts, the husband, the paramour and the wife generally credible. However, after assessing the adduced evidence in light of the relevant statutory factors, the Court found no evidence to suggest that the wife and her paramour comingled or intertwined their finances or that the paramour contributed to the wife’s living expenses. The Court also found no evidence that the wife and the paramour shared household chores or that the paramour made an enforceable promise to support the wife. In fact, the Court found that the paramour financially depended on his parents for the most part: working in the family business and receiving $300 per week. On the contrary, the Court found that the extent of the paramour’s financial contribution to the relationship was purchasing formula, food, clothing and diapers for the child they shared.

Although the Court found that the paramour and the wife lived together, the Court concluded that they were not cohabitating within the meaning of the statute and that no basis to suspend or terminate the husband’s alimony obligation existed. The husband appealed the decision, but the Appellate Division agreed with the trial court.

The decision is a reminder that the Court’s statutory analysis of cohabitation extends beyond the mere fact that the parties live together (or that they have a child together). Evidence of cohabitation requires, inter alia, the comingling of finances, certain social perception of the relationship, true sharing of the household chores and other promises of support.

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