Tuesday, August 25, 2009

Cohabitation

Most divorce property settlement agreements in which alimony is a component will contain a clause regarding cohabitation by the alimony recipient. The clause is part of what many divorce lawyers call the boilerplate clauses, identified as standard, usual sections or paragraphs that appear in most settlement agreements. Many attorneys will give the boilerplate clause a cursory reading because they have seen them before. But to the divorcing couple boilerplate clauses can contain wording which may have subsequent unintended consequences. A cohabitation clause generally states that if the alimony recipient resides with another individual usually an unrelated person of the opposite sex (but not always defined as such) the alimony payer can seek court intervention to modify or terminate the alimony obligation. The reasoning behind the clause is to keep the alimony recipient from residing with the significant other and still reap the benefits of alimony. Consider the following cohabitation standard clause.

Alimony payments shall terminate upon the death of the Husband, the death of the Wife, the remarriage of the Wife, or in the event the Wife resides with any unrelated man without the benefit of marriage for a period continuing for beyond sixty (60) consecutive days.

In the above instance, if the wife resides with an unmarried male for over a specific time period the ex-husband can seek to terminate the alimony obligation. However, what happens if the wife decides to cohabitate with her new significant other who happens to be female? The above clause is silent on this subject and should the ex-husband seek to terminate the alimony the court would initially need to decide whether the ex-husband had any foundation to bring the matter to the court’s attention.

The court’s interpretation of cohabitation has provided two critical lines of thinking. In one instance the court looked at the relationship and opined that: “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.”[1] In addition, “A mere romantic, casual or social relationship is not sufficient to justify the enforcement of a settlement agreement provision terminating alimony. Such an agreement must be predicated on a relationship of cohabitation that can be shown to have stability, permanency and mutual interdependence.”[2] In the same case but at the appellate level the court stated, “cohabitation is tantamount to a marriage”. [3]

In the second and different line of reasoning the court did not view the relationship as tantamount in considering cohabitation but rather the economic benefit the relationship provided to the alimony recipient. “In the changed circumstances of cohabitation modification is warranted when either the cohabitation contributes to the dependent spouse’s support or lives with the dependent spouse without contributing.”[4] The court went on to query whether the need of the dependent former spouse is reduced by the cohabitation. “It is the financial impact of cohabitation, not the relationship itself that triggers review of alimony obligations.”[5] “The test is whether one cohabitant subsidizes the other enough to warrant relief.”[6] “The reduction in financial need is the critical factor in the analysis of alimony modification.”[7]

Based upon the two lines of thinking that the court has professed, it becomes critically important that the drafter of a property settlement agreement and the divorcing couple understand what the term cohabitation means and when can someone subsequently invoke the clause to seek alimony modification. At Montclair Divorce Mediation, the term cohabitation is not just tossed into a boilerplate clause. But rather, cohabitation is explained to the couple and a range of options is presented so that the couple can make an informed decision. Fully documenting what the couple’s intent is during the drafting stage can keep the couple from costly future litigation.

Since the court also considered the economic benefit to cohabitation and not just a relationship it would be wise to consider the cohabitation clause as a potential area where the court in future cases will expand the definition of what constitutes cohabitation. Is it foreseeable that the court reject a relationship aspect altogether and look merely at finances? What about those instances when the dependent spouse receiving alimony takes in roommates to make ends meet? Perhaps it would be advisable to include such provisions at the drafting stage rather than wait for future court interpretation.


[1] Konzelman v. Konzelman, 158 N.J. 185 (1999)
[2] Konzelman, ibid.
[3] Konzelman v. Konzelman, 307 N.J. Super. 150, 161 (App. Div. 1998), affirmed 158 N.J. 185 (1999)
[4] Garlinger v. Garlinger, 137 N.J. Super. 56, 64 (App. Div. 1975)
[5] Gayet v. Gayet, 92 N.J. 149, 155 (1983)
[6] Boardman v. Boardman, 314 N.J. Super. 344 (App. Div. 1998)
[7] Conlon v. Conlon, 335 N.J. Super. 638, 649 (Ch. Div. 2000)

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