Divorce Myth #7 – My alimony should stop because my ex-spouse is living with someone

Posted by on Apr 8, 2015 in Alimony & Child Support, Blog, Top Ten Divorce Myths | Comments Off on Divorce Myth #7 – My alimony should stop because my ex-spouse is living with someone

Divorce Myth #7 – My alimony should stop because my ex-spouse is living with someone

Divorce Myth #7* – My alimony should stop because my ex-spouse is living with someone

Whether or not an alimony "should" stop upon cohabitation is a fact sensitive inquiry. Absent a written agreement to the contrary, it is well settled that alimony must terminate upon the payee’s re-marriage or the death of the payor or payee. However, beyond these three scenarios, a person seeking to review their alimony obligation must first show a change of circumstances warranting such a review. Not an automatic termination; a review. A payee’s cohabitation is one situation which could amount to such changed circumstances.

 

In the past, a payor needed to first establish a prima facie case of cohabitation to obtain a review of their alimony obligation. The test was essentially whether the payee’s relationship reduced their financial need. Once a prima facie case had been made it created a rebuttable presumption of changed circumstances and shifted the burden to the payee to show that there was no economic benefit to the cohabitant or payor. What constituted cohabitation was caselaw driven.

Seeking greater uniformity in how these cases are to be addressed, the recently revised alimony statute includes a new section devoted to the issue of cohabitation. The statute reads as follows: "Alimony may be suspended or terminated if the payee cohabits with another person. Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household."

The statute lists seven factors for the court to consider when determining whether or not cohabitation is occurring. These factors include how the payee and cohabitant handle their finances and responsibilities. In addition to the enumerated factors the court is also to consider the length of the relationship. Finally, the statute provides that the "court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis."

The reality remains that if the payee is cohabiting with someone they could still receive alimony payments even if it is a reduced amount. The closer the payee and cohabitant have to a "typical" married relationship, the better the chances that the payor can have their obligation terminated.

*This is the seventh article in a ten part series exploring the most common myths concerning divorce law in New Jersey.

All of the attorneys at Domers & Bonamassa are well versed and have years of experience addressing family law issues, no matter how complicated. Contact us today at (856) 596-2888 for a private consultation. We appear in the following counties: Burlington, Camden, Gloucester, Cumberland, Salem, Mercer, Ocean, Atlantic and Cape May. Our practice areas include: divorce, custody, parenting time, child support, alimony, domestic violence, college expenses, equitable distribution, name changes, step parent adoptions, paternity issues, child abuse and neglect, prenuptial agreements, mediation and arbitration.

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