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Cohabitation is More than Just Living with Another Person

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The New Jersey courts have long recognized and respected the terms of a marital settlement agreement (MSA) so long as it is valid. They are taken as expressions of the parties' wishes and will honor it as long as there is not a reason to disregard it. A cohabitation provision is often a feature in these agreements. They usually put a limitation on the duration of when alimony shall be paid. 

Case Study: Schmitt v. Schmitt
In Schmitt v. Lupo-Schmitt, No. A-2053-16T2 (N.J. Super. App. Div. May 2, 2018), the MSA provided that the plaintiff agreed to pay the defendant $1,500.00 in alimony per month for six years, but stated that the alimony obligation would terminate if the defendant "co-habits with a person of the opposite sex." After two months of paying alimony, the plaintiff stopped making payments, alleging the defendant had started cohabiting with someone of the opposite sex and thus was relieved of his alimony duty. He asserted that the defendant was living with another man who was "financially responsible for providing for her." He argued that the two had a lifelong relationship of over forty years, that they live together as a family and that he handles his financial responsibilities. The defendant opposed the motion. She responded that she had never hid the fact that she moved into the residence of her best friend's father, and her best friend's brother. She insisted that she had previously informed the plaintiff that their children would also be moving into their home as well. Furthermore, the defendant confirmed that she had no romantic relationship with either the father or the brother, and that they did not financially support neither her nor the children. 

The plaintiff ex-husband alleged that this relationship constituted cohabitation under the law and the MSA, and that he was therefore relieved of his obligation to pay alimony to the defendant ex-wife. The court applies the law's definition of cohabitation by looking for certain factors. The court looks for:

  1. Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
  2. Sharing or joint responsibility for living expenses; 
  3. Recognition of the relationship in the couple's social and family circle; 
  4. Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship; 
  5. Sharing household chores; 
  6. Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S.25:1-5; and 
  7. All other relevant evidence. 

N.J.S.A. 2A:34-23(n) (2017). 
Under this statute, the trial judge found that the plaintiff had made a "meritless and bald allegation that [d]efendant is cohabiting." He continued and opined, "[t]he mere fact that [d]efendant is living in the same house as another person of the opposite sex is not on it face a prima facie showing of cohabitation." The higher court further supported the finding, saying that plaintiff could not show demonstrate that defendant shared with either the father or the brother "a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union. The court denied plaintiff's request to stop paying alimony.

Key Points
Since the inception of the amended alimony law which governs "cohabitation" in 2014, the New Jersey courts have been working to define the bounds and limits of the law. It is clear that the statue was designed to carve out situations where a male and female live together but not "cohabit" with one another. 

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