What can you do if you’re paying alimony and suspect your ex is in a new romantic relationship?
Your ex might be “cohabitating” under New Jersey law. If so, you can ask the court to terminate, modify, or suspend your alimony payments back to the time the cohabitation began.
What is cohabitation under New Jersey law?
Under current New Jersey alimony law, 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.”
Therefore, the couple does not have to live together on a full-time basis to be considered “cohabitating.”
When determining if cohabitation exists, New Jersey courts will consider the following:
- Intertwined finances, such as joint bank accounts and other joint holdings or liabilities.
- Sharing or joint responsibility for living expenses.
- Recognition of the relationship in the couple’s social and family circle.
- Whether the couple is living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship.
- Sharing household chores.
- An enforceable promise of support from the romantic partner.
What if you were divorced before September 2014 (when the current New Jersey alimony law became effective), and your divorce agreement contains an alimony provision for cohabitation? You would then need to prove your ex-spouse shares a common residence with the romantic partner.
What is the process to reduce or eliminate alimony?
It’s common for the spouse receiving alimony to hide the true nature of shared financial and living arrangements.
At the same time, you need to be able to show your ex-spouse is cohabitating by deliberately and carefully gathering the right evidence.
Only then will you be able to file a motion with the court and meet your legal burden. The legal burden requires an initial prima facie case that your ex is cohabitating in a serious relationship. The term “prima facie” means the evidence you submit to the court is accepted as correct until proved otherwise.
Otherwise, a premature court filing without sufficient basis will not only be rejected; it will likely doom any future applications about the same relationship.
If the court deems the evidence sufficient, it may grant you the right to gather more conclusive evidence, including financial records.
Proving cohabitation is a daunting task. If successfully done, however, it could ultimately save much money if alimony were to be terminated back to the time of cohabitation.
What type of evidence should be gathered to prove cohabitation?
An experienced private investigator can help gather compelling evidence of cohabitation. Private investigators can monitor social media activity and establish patterns of cohabitation activity by surveillance.
Make sure to outline the scope and focus of the investigative efforts with the investigator to ensure financial resources are used wisely.
For instance, in working with a private investigator, you might have investigative efforts focus on:
- Searching for an association with the romantic partner’s address, such as mailing address, cell phone or other publicly available accounts.
- Reviewing text and email communications with your ex-spouse for inferences of a relationship or plans to be away. This can help to pin down dates for surveillance or other investigatory tools.
- Documenting the couple leaving the home together in one vehicle and going to such places as restaurants, gyms, doctor appointments, or other destinations.
- Showing the couple packing belongings into one car for the weekend, stopping for groceries, dinner, or another store, and heading to their common destination.
- If there are two homes in play, both should be considered. For instance, the private investigator might photograph both vehicles together at one residence late in the evening and again perhaps at 5:00 a.m. on the following morning. If enough of such instances can be strung together, evidence that the couple actually lives together can be captured.
- Show the couple regularly involved in family and social circles. For instance, photographs of the significant other accompanying the children or other family members or driving and arriving at a location together.
- Creative private investigators might also examine discarded garbage placed at the curb of one of the homes for pickup (which is generally admissible in court), for papers or other helpful evidence to determine the couple’s lifestyle and spending habits. These might include financial statements (credit card, bank, and business accounts with account numbers, location, and amounts; Envelopes from financial institutions with return addresses; paper deliberately torn into pieces; love letters, cards, notes and phone numbers of friends and relatives (even handwritten notes about plans to move, vacation, etc.).
The longer surveillance and other investigative activities continue and demonstrate ongoing comings and goings of the couple, the more credible a court application is likely to be.
If you are not yet divorced, you can avoid the above post-divorce process by including a cohabitation provision for alimony in your divorce agreement.
Such a provision should clearly define what “cohabitation” means and its effect on alimony payments.
Every situation is unique. For more information on how best to modify or terminate alimony or to settle your divorce out of court, please call or click here.