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Terminating or Reducing Alimony due to Cohabitation

In a previous post we highlighted how the retirement of an alimony payor will not necessarily terminate an alimony obligation. Today will illustrate how cohabitation does not necessarily result in a termination or reduction of alimony.

Alimony can be reduced or terminated when the financially dependent ex- spouse cohabitates with someone who reduces the financial needs of the financially dependent ex-spouse.  However, the ex-spouse seeking the reduction or elimination of the alimony obligation must initially prove the cohabitation.

The court will then look at the economic consequences of the cohabitation once the cohabitation has successfully been proven. While often times cohabitation will lead to an improved economic situation for a financially dependent ex-spouse, that is not always the case…

Once cohabitation has been established, the party seeking the elimination or modification of alimony must also show intertwined finances, shared activities of daily living, and common and/or shared living expenses. In short, there needs to be a showing of the improved financial circumstances of the alimony recipient due to the new  relationship. These are all very fact-sensitive issues and a court will, need to hold a plenary hearing to determine the existence of and the financial impact of alleged cohabitation. In these cases, the credibility of the witnesses is of utmost importance.

In a recent unpublished decision, Michael Bell v. Margaret Bell, the Appellate Division affirmed the decision of Camden County Superior Court Judge John Kelly.  In this case, the plaintiff alleged a reduction of income and ability to pay alimony based on his termination from a family run business. He further alleged that the romantic interest of his former wife was cohabitating with her boyfriend  and he was providing her with financial support.

At the plenary hearing, it became apparent that the defendant’s boyfriend was not giving her money but loaning her money because of the plaintiff’s failure to pay alimony. What is significant about this case is the boyfriend’s loan of money was well-documented and secured by a mortgage in the defendant’s home. The court held:

Although defendant may be economically dependent upon Worthington, her dependence arises, in large measure, from plaintiff’s failure to meet his financial obligations to her.”

The court found it unfair and improper for the plaintiff to withhold his court-ordered support payment and then allege defendant had intertwined finances with her boyfriend because she was borrowing money from him.  The court also found that the plaintiffs alleged job situation and reduction of income were not credible:

Here, the trial judge specifically found plaintiff’s testimony as to his finances and employment status was not credible. And when considered with the fact that his employment has always been with family—owned companies, the trial court’s finding that plaintiff was voluntarily underemployed becomes even more compelling.”

The most important lesson learned from this case is that credibility matters.  The trial court found that the plaintiff’s testimony was not credible and the testimony of the defendant and her boyfriend was credible. The Appellate Division would not disturb, in fact relied upon the trial judges determination of credibility of the parties and the witnesses.  The Appellate Division concluded,

Under the circumstances, deferring to the trial court’s credibility and fact findings, we discern no abuse of discretion in its denial of plaintiff’s motion to modify or terminate his spousal support obligation.”

At DeMichele & DeMichele we regularly represent clients in post judgment alimony disputes.  If you need help with alimony or cohabitation put our experience to work for you. Contact us online today for a confidential initial consultation. Help is also only a phone call away at (856) 546-1350.

 

Post Author: Rick DeMichele

Richard A. DeMichele, Jr. is a seasoned litigator, devoting a substantial part of his practice to family law and personal injury matters.