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The Landau Decision Examined
By Charles F. Vuotto, Jr.
The New Jersey Appellate Division recently clarified a point of procedure when seeking to terminate or modify alimony in light of cohabitation in the case of Landau v. Landau[1]. For many years, cohabitation has been the basis to terminate or modify alimony. After the alimony statute was modified on Sept. 10, 2014[2], a list of factors was put into place for a court to consider when determining whether a dependent spouse receiving alimony was cohabiting. Some of these factors are based on financial information, such as the extent to which the dependent spouse and their significant other share responsibility for living expenses or have intertwined finances. However, it is usually the case that the ex-spouse paying alimony in a post-divorce situation does not have financial information regarding the dependent spouse or their alleged cohabitant. The Appellate Division made it clear that a court cannot compel the dependent spouse or their alleged cohabitant to produce financial information before the court finds that a prima facia case of cohabitation has been made. In light of this holding, however, if the court cannot compel the production of financial data of the dependent spouse and or their alleged cohabitant prior to the finding that a prima facie case has been made, should the financial factors included in the statutory list be deemphasized when determining whether a prima facie case has been made?
The question presented by this case was whether the changed circumstance standard of Lepis v. Lepis[3] continues to apply to a motion to suspend or terminate alimony based on cohabitation following the 2014 amendments to the alimony statute, N.J.S.A. 2A:34-23(a). The Appellate Division determined that the party seeking modification still has the burden of showing the changed circumstance of cohabitation so as to warrant relief from an alimony obligation[4]. The Appellate Division held that the 2014 amendment to the alimony statute did not alter the requirement that “[a] prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse’s financial status.”[5]
Paragraph (n) of the new alimony law, addresses cohabitation and reads as follows:
Alimony may be suspended or terminated if the payee cohabits with another person. 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.
When assessing whether cohabitation is occurring, the court shall consider the following:
(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.
In evaluating whether cohabitation is occurring and whether alimony should be suspended or terminated, the court shall also consider the length of the relationship. A court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis. [6]
(Emphasis added)
Prior to the enactment of the new law, cohabitation cases were controlled by Garlinger v. Garlinger[7] and Gayet v. Gayet[8]. The Supreme Court in Gayet v. Gayet adopted the economic test delineated in Garlinger v. Garlinger, 137 N.J. Super 57 (App. Div. 1975) for determining whether alimony should be terminated based on cohabitation. The principles of Garlinger supra call for modification when either a third party contributes to the dependent’s spouse’s support or a third party resides in the dependent’s spouse’s home without contributing anything toward the household expenses.[9] In short, this scheme permits modification for changed circumstances resulting from cohabitation only if one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief.[10] The extent of actual economic dependency, not one’s conduct as a cohabitant, must determine the duration of support as well as its amount under the law defined in Gayet.[11]
The Garlinger and Gayet standard changed substantially as a result of the new law enacted in September of 2014. The question is now about finding cohabitation under the factors listed. The economic factors are only two of seven factors. Arguably, a court may find cohabitation without any of the economic factors being found to exist. Further, the dependent spouse and their significant other need not reside under the same roof. Based on the new standard for cohabitation, it is suggested that the first two cohabitation factors, which ask a court to look at the extent of intertwining finances between the dependent spouse and cohabitant as well as the extent to which the dependent spouse and cohabitant are sharing responsibility for living expenses should be de-emphasized in the analysis of whether an ex-spouse paying alimony has met a prima facie showing of cohabitation.
In the Landau matter, the first two cohabitation factors seem to have been elevated in importance. In that case, significant facts appear to have been presented to the trial court suggesting that a prima facie case had been made. The paying spouse (plaintiff) filed a certification alleging that the dependent spouse and her alleged cohabitant had traveled together, attended social activities as a couple and posted photos and accounts of their activities on social media sites. He further alleged that the alleged cohabitant engaged in many activities with the parties’ children and regularly slept over at defendant’s home, as she did at his home. The plaintiff claimed that the alleged cohabitant attended events he used to attend with defendant, including family birthday dinners with her parents. He further claimed that the cohabitant attended the bar mitzvah of one of the parties’ sons and was seated next to defendant in “the position of honor” for a parent of the child being bar mitzvahed.At the celebration afterwards, the plaintiff alleged defendant publicly acknowledged the man and their relationship in her speech. He also claimed defendant told him she moved her brokerage accounts to the firm where the alleged cohabitant works and got a “friends and family discount” (although plaintiff later denied this). In fact, plaintiff alleged that the defendant and her boyfriend cohabited in each other’s residence approximately 75% of the time examined by a private investigator. One would think that these facts were enough to meet the threshold requirement of a “prima facie showing.” It is critical to remember that prima facie showing means that plaintiff’s “proffered evidence, if…unrebutted would …sustain a judgment” in his favor.”[12] (Emphasis added)
The defendant opposed plaintiff’s action by denying that she was cohabitating and arguing that merely having a boyfriend did not mean she was cohabitating under the statute. She further alleged that she and her cohabitant “had no intertwined finances and did not share living expenses.”[13] However, many have wondered, how is it fair to permit the dependent spouse to make that assertion without disclosing reasonable financial documentation to verify it?
The trial court decided that it would not determine whether plaintiff made out prima facie case but would allow discovery to move forward on a limited basis to provide plaintiff the opportunity to make his required a prima facie showing. In other words, the trial court permitted discover without making a finding that the movant had made a prima facie showing of changed circumstances based on cohabitation.
The Appellate Division clarified that the continuing jurisdiction of the family part to modify the alimony fixed in an original judgment of divorce “upon application by either party” is now expressed in N.J.S.A. 2A:34-23, which “provides that such orders “may be revised and altered by the court from time to time as circumstances may require.””[14] It is that language, which the Legislature did not alter in the 2014 amendments, which codifies that “alimony and support orders define only the present obligations of the former spouses” and grounds the court’s equitable power to review and modify such orders “on a showing of “changed circumstances.””[15] The court clarified that the family part’s jurisdiction to modify orders providing for alimony or child support on changed circumstances long predates Lepis. Lepis was simply the court’s opportunity to provide direction for “the standards and procedures” trial courts should employ “for modifying support and maintenance arrangements after a Final Judgment of Divorce.”[16] The Appellate Division in Landau saw no indication that the Legislature evinced any intention to alter the Lepis changed circumstances paradigm when it defined cohabitation and enumerated the factors the court is to consider in determining “whether cohabitation is occurring” in the 2014 amendments to N.J.S.A. 2A:34-23.
The Appellate Division concluded that the plaintiff provided no support for his claim that the legislature in 2014 “signaled a clear departure” from Lepis “with respect to analyzing motions to terminate alimony based on cohabitation.” However, a practical interpretation must be applied to the statutory factors that a court must consider when determining whether a payor spouse has made out an adequate prima facie showing of changed circumstances based on cohabitation. First, it should be noted that the Landau Appellate Division acknowledged that the Legislature in N.J.S.A. 2A:34-23(n) essentially adopted the definition of cohabitation as found in Konzelman v. Konzelman[17], which is as follows:
Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These can include, but are not limited to, 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.
Here is a central problem; whether analyzing the definition of cohabitation from the definition provided by the Supreme Court in Konzelman or the factors added to the statute in 2014, it is clear that the financial factors cannot be adequately presented by the payor spouse since in almost every instance that spouse does not have the information and documentation necessary to make out that case.
It is problematic that the statute provides in one part that when analyzing whether cohabitation is occurring and whether alimony should be suspended or terminated, the court shall also consider the length of the relationship but that the court may not find an absence of cohabitation solely on the grounds that the couple does not live together on a full-time basis. Further complicating this analysis is the quote from Quinn v Quinn stating: “We do not suggest today that a romantic relationship between an alimony recipient and another, characterized by regular meetings, participation in mutually appreciated activities, and some overnight stays in the home of one or other, rises to the level of cohabitation. We agree that this level of control over a former spouse would be unwarranted.” [18]The differentiating factors for the most part are financials that are not in the hands of the paying spouse until discovery is completed.
The Landau Appellate Division recognized that a prima facie showing of cohabitation can be difficult to establish.[19] Nevertheless, the Landau court indicated that it was confident that the Lepis paradigm requiring the parties seeking modification to establish “[a] prima facie showing of changed circumstances…before a court will order discovery of an ex-spouse’s financial status,”[20] continues to strike a fair and workable balance between the parties’ competing interest, which was not altered by the 2014 amendments to the alimony statute.[21] However, this author believes that the economic cohabitation factors (factors one and two) should be de-emphasized when a trial court addresses whether a payor spouse has made out a sufficient prima facie showing of changed circumstances based on cohabitation.
[1] 2019 WL 4308641
[2] L. 2014, c. 42, § 1 became effective the day it was enacted, Sept. 10, 2014.
[3] 83 N.J. 139,157 (1980)
[4] see Martindell v. Martindell 21 N.J. 31, 353 (1956)
[5] Lepis 83 N.J. at 157
[6] N.J.S.A 2A:34-23(n)
[7] 137 N.J. Super. 56 (App. Div. 1975)
[8] 92 N.J. 149 (1983)
[9] Garlinger v. Garlinger, 137 N.J. at 64.
[10] See Gayet v. Gayet, 92 N.J. at 104.
[11] Id.
[12] Landau v. Landau, at 2.
[13] Id.
[14] Martindell, 21 N.J. at 352.
[15] Lepis, 83 N.J. at 146, see also Quinn v. Quinn 225 N.J. 34 49 (2016).
[16] 83, N.J. at 143.
[17] 158 N.J. 185,202 (1999)
[18] 225 N.J. at 54
[19] Konzelman v. Konzelman 158 N.J. at 191-92.
[20] 83 N.J. at 157
[21] Landau v. Landau, at 6.