Appellate Division Finds That Alimony Payor Must Still Fulfill Initial Burden of a "Change in Circumstances" Before Being Entitled to Discovery from Payee Under New Jersey's Cohabitation Statute
Our blog has featured many articles on the topic of cohabitation, where a former spouse paying alimony can seek to modify his/her alimony obligation if the payee former spouse cohabits with another person in 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.”
While cases addressing the topic of cohabitation prior to the enactment of the cohabitation statute in 2014 discussed how alimony could be modified to something short of a complete termination, the statute expressly provides only that alimony “may be suspended or terminated” in the event cohabitation occurs. Thus, the potential impact of a payee spouse’s cohabitation is even greater than before the statute passed.
Prior to the 2014 cohabitation statute’s enactment, when a payor former spouse filed a motion to terminate alimony based on the payee’s alleged cohabitation, he was required to fulfill his initial (prima facie) burden that the cohabitation constituted a change in circumstances meriting an alimony modification. Such proofs often consisted of the payee and cohabitant engaging in the sort of relationship that amounts to cohabitation, rather than a mere dating relationship.
After the statute passed, however, one unanswered question was whether the “change in circumstances” burden continued to apply to cohabitation motions. On September 12, 2019, the Appellate Division in the published decision of Landau v. Landau put an end to this discussion by definitively holding that the initial “change in circumstance” requirement is alive and well, and must be proven before a trial court can allow for further investigation/discovery to occur. This holding is consistent with other types of changed circumstances meriting a potential change in alimony including, but not limited to, a payor’s retirement or loss of income, or a payee’s decreased financial need.
In Landau v. Landau, the parties entered into a settlement agreement in 2014, in which Plaintiff agreed to pay alimony to Defendant for a term of 7.5 years. The settlement agreement specifically provided that “[n]otwithstanding anything contained herein to the contrary, the [Defendant’s] cohabitation as defined by then-current statutory and case law shall be a basis for the [Plaintiff] to file an application seeking a review and potential modification, suspension or termination of alimony pursuant to New Jersey law.”
In December 2017, Plaintiff filed a motion seeking a termination of his alimony obligation based on Defendant’s cohabitation with her boyfriend. The trial court judge entered an order stating that he was not going to decide whether the Plaintiff had made a prima facie case as required by statute and caselaw, but that he would allow discovery to permit the Plaintiff the opportunity to make the prima facie showing.
A party seeking to modify either custody or support, is required to make a prima facie showing of changed circumstances before the court will grant discovery pursuant to the seminal case of Lepis v. Lepis. In Landau, the trial court did not find that the Plaintiff made a prima facie showing of cohabitation. Rather, the trial court judge “decided that [he was] not going to decide whether . . . plaintiff has made out a prima facie case, but [he was] going to allow discovery . . . to allow . . . plaintiff the opportunity to make a showing of a prima facie case, or not, as the case may be.” With this decision, the trial court judge allowed the Plaintiff to conduct very broad discovery to try to be able to make a prima facie showing of cohabitation, which the Plaintiff failed to do in his moving application. Plaintiff appealed the trial court’s Order.
The Appellate Division reversed the trial court’s Order allowing discovery. In doing so, the Appellate Division rejected the Defendant’s argument that the 2014 alimony statute altered the application of Lepis when it came to change of circumstances motions, specifically, cohabitation. It also held that the difficulty associated with establishing cohabitation cannot justify the invasion of privacy the Court allowed in this case by granting the Plaintiff broad rights to discovery. Further, the Lepis standard was found to continue to strike a fair and workable balance between the parties’ competing interests, which was not altered by the 2014 amendments to the alimony statute. Because the trial court judge found that the Plaintiff had not established a prima facie case of changed circumstance of Defendant’s cohabitation, Plaintiff was plainly not entitled to discovery under Lepis.
As a result, the party seeking a modification still has the burden of showing the changed circumstance of cohabitation so as to warrant relief from an alimony obligation, and the 2014 amendments to the alimony statute did not alter the requirement that, in accordance with Lepis, “[a] prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse’s financial status.”
The takeaway remains: when deciding whether to file a change of circumstances motion, especially one based on the receiving party’s cohabitation, the more proofs you have prior to filing the better your chances are of being able to meet your prima facie burden. The court will not allow you to back into your proofs, so it is important to have your proverbial ducks in a row.