On February 3, 2009, my colleague, Katherine R. Sookhoo, an associate in or Philadelphia office, wrote a very interesting article on cohabitation in our Pennsylvania Family Blog entitled For Love or Money. I found the blog interesting for two reasons. First, the rule of law between Pennsylvania and New Jersey are significantly different. Second, although different, the difficulty litigants have in either jurisdiction in proving that their ex-spouses are cohabiting is the same.
Pursuant to the Pennsylvania Divorce Code, divorce litigants are not entitled to alimony if they cohabit after they have been divorced. However, in Pennsylvania, in cases resolved by way of Property Settlement Agreement, the Pennsylvania Divorce Code provision applies only if the agreement specifically states that cohabitation terminates alimony.
Unlike Pennsylvania, New Jersey statutory law does not prohibit receipt of alimony payments based upon cohabitation. In New Jersey, while cohabitation may be considered a change in financial circumstances that permits a review and/or a modification of alimony, the fact that an ex-spouse cohabits does not necessarily mean that alimony will be terminated. Konzelman v. Konzelman, 158 N.J. 185 (1999).
While Pennsylvania and New Jersey have differing laws regarding cohabitation, both jurisdictions are plagued with the uncertainty of how the Court’s define “cohabitation”. In Pennsylvania, there has to be a showing of a financial, social and sexual link, by sharing the same residences. Miller v. Miller, 508 A.2d 550 (1986). In New Jersey, the New Jersey Supreme Court noted that “to constitute cohabitation, the relationship must be shown to be serious and lasting” and that “a mere romantic, casual or social relationship is not sufficient to justify enforcement of settlement agreement provision terminating alimony upon dependent spouse’s cohabitation; such a provision must be predicated on a relationship of cohabitation that can be shown to have stability, permanency, and mutual interdependence” Id.
Therefore, does cohabitation exist if your ex-spouse and her paramour switch back and forth in sleeping in their respective residences? If they stay together only on weekends? If they have resided together for a month? How about a year? What if their finances are totally separate? In either Pennsylvania or New Jersey, the answers to those questions are not entirely clear and Courts determine the issues on a case-by-case basis.
Because there is no exact definition of “cohabitation”, proving that cohabitation exists may be tricky and requires a thorough analysis of the circumstances before raising the issue in Court. If a litigant is going to allege cohabitation, before doing so, they should make sure that factually and legally, they have enough to get beyond the “grey” area because (1) if you are going to proceed in Court, you want to prevail; and (2) you don’t want to go to Court, lose, and give your ex-spouse the ability to further avoid termination of alimony now that they know your on to the cohabitation.
EDITOR’S NOTE: Apple is absolutely correct regarding the grey areas. That said, there have been a number of unreported Appellate Division decisions over the last year or so that have been more permissive in what amounts to cohabitation. Specifically, many of the cases suggest that staying together every single night may not be required, and that the location is not entirely important (ie. some nights at her house and some nights at his house.)
However, once some semblance of cohabitation is shown, unless the divorce Agreement specifically calls for the termination of alimony, and most don’t, the next issue to address is the financial interdependence between the former spouse and cohabitant. Put another way, cohabitation is not enough to terminate alimony in the typical case. You have to look at the financial impact of the cohabitation. Eric S. Solotoff