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A Claim of Cohabitation Warrants Investigation and a Court Hearing

by | Nov 30, 2016 | Uncategorized


A November 4 Appellate Court decision focused on the question: Does evidence of cohabitation by an alimony recipient permit a former spouse to compel disclosure of information about it in order to readjust a marital settlement agreement? The court said “absolutely.”

Shahan Islam is an attorney who married Melody Davis, a professor, in 1983. They had 2 children. The divorce, including the settlement agreement, was finalized in 2001. The agreement required Mr. Islam to pay $1,019.21 per week as permanent alimony. The agreement assumed that Ms. Davis was making $35,000, and he was earning $200,000.

In 2014, Mr. Islam went to court to terminate or modify his alimony obligation, in a New York court, on the ground of his ex’s alleged cohabitation with another individual. At the hearing, her lawyer “stated that [she] would not be denying cohabitation with D.W.” That court refused to issue a decision and sent the case to New Jersey (it said that N.J. had exclusive jurisdiction).

The former husband then filed a similar application in New Jersey, seeking termination/reduction of his obligation based on the alleged cohabitation. Of key importance was his further request that the court compel “discovery” (disclosure of information from the other side) and a court hearing on the question of cohabitation.

Islam claimed that his ex-wife began a romantic relationship sometime in 2002, during the divorce – and bought a home in New York. He said that she and her lover lived together in that home – and that he “not only resides with [her], he has also been involved with the parties’ children in their graduations, birthdays, and ‘virtually all holidays'”. He even went so far as to allege that the new couple didn’t marry only to keep the alimony coming.

He also said that she was now more successful in her professorship, and was making more money, which would represent changed financial circumstances. She disagreed and said that she was still economically dependent on Plaintiff’s alimony, and that she believed his new income to now be $300,000-$500,000 annually.

Another point of contention was that the divorce settlement didn’t say anything about what would happen in the event of “cohabitation,” and that the new love interest was merely a “boyfriend” who did not live with her. Ms. Davis said that they did not comingle “incomes, finances, assets, and debts.” According to her, they each paid for their own expenses.

She admitted that the boyfriend did move into her home “temporarily” – but that he moved out in February 2015. Interestingly, “Defendant denied that D.W. moved out of her home because of [the ex-husband’s application]” – instead saying that he moved out because it wasn’t a serious relationship. She told the court that even though he lived with her, they paid for their own expenses. She also said that her financial circumstances had changed for the worse, because one of the couples’ children was at college and she had to pay toward that. In fact, she “stated that D.W.’s payments ‘helped defray some of those increased expenses.'”

The lower court judge considered the applications and felt that Islam did not establish that Davis’ living arrangement with the new boyfriend was cohabitation. That judge made a number of findings, essentially believing all of her claims. Of particular importance was his denial of the request for discovery and for a plenary hearing.

The Appeals Court disagreed and said that any showing of an alleged change in circumstances warrants review by a court. The big question here was whether the living arrangement amounted to “cohabitation” under N.J. 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. N.J.S.A. 2A:34-23(n)

There are 7 considerations that a court must review that are listed in the law. statute. The upper court was convinced that the lower court made a mistake in not granting discovery and a plenary hearing because the Plaintiff “conceded that D.W. resided with her in her home…” at the New York hearing. Since there were so many points in contention, a judge could absolutely find differently, after a full hearing with evidence presented and testimony under oath, than the lower court judge did. The ex-husband’s application for discovery and a hearing should have been granted. Evan Xavier Bakhet is a J.D. Candidate at Rutgers School of Law-Newark with a scheduled graduation date in 2017. He collaborated with me on this blog.

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