Cohabitation

If an alimony recipient lives with an unrelated person, the cohabitation may justify a modification or possibly a termination of the alimony obligation all together. To determine whether a modification or termination of alimony is appropriate, the Courts utilize a two prong burden-shifting test.

The first inquiry is whether there is showing of “cohabitation” by the alimony recipient. Such a finding gives rise to the rebuttable presumption that the financial needs of the dependent spouse have been reduced, thereby shifting the burden of proof to the dependent spouse as to her economic circumstances.

The second prong consists of an evaluation of the reduced financial need of the dependent spouse based upon the economic effect of his or her cohabitation establishing whether this change in circumstances warrants termination or modification of the supporting spouse’s payment of alimony. A dependent former spouse’s financial need may be found to be decreased for one of two reasons: (a) because he or she is receiving support from the person with whom she is cohabiting or (b) due to the probability that the dependent former spouse is using the alimony he or she is receiving from the supporting former spouse to support the person with whom he or she is cohabiting. Because the facts regarding a dependent person’s economic circumstances are usually only within the knowledge of the alimony recipient, the failure to come forward to rebut the presumption of changed circumstances based upon decreased financial need should entitle the payor to terminate his or her payment of alimony.

In many cases, the effect of the alimony recipient’s cohabitation on the alimony obligation will be specifically addressed in a Marital Settlement Agreement. In cases where a Marital Settlement Agreement does not specifically address the issue of cohabitation and the impact of same on spousal support, the Courts have held that they must decide the issue based on New Jersey case law as opposed to construing a settlement agreement.

The financial effect of the cohabitation of an alimony recipient spouse, whereby his or her financial need is decreased, is the basic principle supporting modification or termination of payment of alimony by a supporting former spouse. A dependent former spouse’s financial need may be found to be decreased for one of two reasons: (a) because he or she is receiving support from the person with whom she is cohabiting; or (b) due to the probability that the dependent former spouse is using the alimony he or she is receiving from the supporting former spouse to support the person with whom he or she is cohabitating.

Because the facts regarding a dependent person’s economic circumstances are usually only within the knowledge of the alimony recipient, the failure to come forward to rebut the presumption of changed circumstances based upon decreased financial need, entitles the payor to terminate his or her payment of alimony.

Accordingly, because the parties’ Property Settlement Agreement is also silent on the issue of cohabitation, this Court should apply applicable case law set forth herein to the facts at hand.