Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In January 2013, the parties divorced after fourteen years of marriage. They had two children together. The trial court entered a final judgment of divorce in June 2014, and pursuant to the final judgment, defendant pays plaintiff $2,500 per month in alimony. Defendant filed an initial motion to terminate alimony in late January 2019, alleging plaintiff cohabitated with “her significant other,” M.M., based upon their “long-standing significant relationship of at least seven years.” Defendant withdrew the motion for the parties to attend mediation, which proved unsuccessful.
In April 2019, defendant re-filed the motion, including a request for a plenary hearing. In support of his motion, defendant provided a certification detailing the relationship between plaintiff and her significant other. According to defendant, they would travel together, vacation together with the children, spend weekends together, and the children would spend holidays with the significant other and his family.
On May 31, 2019, the motion judge denied defendant’s application in its entirety. In a written decision, the judge evaluated the factors set forth in N.J.S.A. 2A:34-23 and found defendant failed to provide sufficient evidence to establish a prima facie case of cohabitation. The judge specifically found no evidence of plaintiff and M.M. having intertwined finances, having joint responsibility for living expenses, living together, or exchanging any enforceable promise of support. Moreover, she found defendant’s proofs do “not indicate that the couple’s social circle views their relationship in a way ‘commonly associated with marriage.'” In addition, the judge noted that defendant provided only “very limited information regarding the sharing of household chores – plaintiff utilizing M.M.’s car on one occasion and taking his dog out for him on one occasion.” Based on these proofs, the judge found that defendant failed to provide “sufficient evidence to justify the court ordering a plenary hearing on the issue of cohabitation.”
The same day of the motion judge’s decision, the defendant appealed from the Family Part order denying his motion to terminate his obligation to pay alimony to plaintiff. Defendant alleged that he provided sufficient evidence of plaintiff’s cohabitation to warrant further discovery and a plenary hearing.
On appeal the appellate judge affirmed the motion judge’s decision noting that they see no reason to disturb the motion judge’s finding that defendant failed to establish a prima facie case of cohabitation. The party seeking modification of alimony bears the burden of establishing “[a] prima facie showing of changed circumstances . . . before a court will order discovery of an ex-spouse’s financial status” and a plenary hearing. Lepis v. Lepis, 83 N.J. 139, 157, 159 (1980). To prevail, defendant needed to provide evidence that plaintiff and M.M. have “undertaken duties and privileges that are commonly associated with marriage,” including “living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple’s social and family circle.” Konzelman v. Konzelman, 158 N.J. 185, 202 (1999). The appellate judge stated as the motion judge had that the defendant provided no evidence of intertwined finances, shared living expenses, living together, or an enforceable promise of support. Defendant relied on limited evidence of plaintiff and M.M., over several years of dating, somewhat frequently seeing and traveling with one another and their families, sharing four to five pictures on Facebook holding themselves out publicly as a couple, and two instances of sharing responsibilities. This is simply not enough to establish a prima facie case of cohabitation.
At Hark & Hark, we represent clients for appeals in Superior Court for issues like the present case pertaining whether the termination of alimony payments is appropriate or not. We work hard to ensure that our clients receive exceptional representation so that they receive the most favorable outcome as a result.
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