Recent Changes in New Jersey Cohabitation Applications

October 30, 2023 | By Tessa E. Wagoner

If you are paying or receiving alimony, you should be aware of recent changes and clarifications to the burden of proof required to make a prima facie case of cohabitation.  If you are paying alimony to a former spouse, it just got easier to obtain a Court Order permitting you to investigate your former spouse’s finances to prove that they are cohabiting.

In New Jersey, an alimony recipient’s cohabitation with a partner is grounds to terminate an alimony obligation. Cohabitation does not necessarily mean that the individuals are residing together, but rather, is defined as “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.” See N.J.S.A. 2A:34-23(n).  

New Jersey statute enacted in 2014 prescribes the factors a Court will look at to determine whether a cohabitation relationship is occurring. Specifically, the court considers the following:

  • Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
  • Sharing or joint responsibility for living expenses;
  • Recognition of the relationship in the couple’s social and family circle;
  • Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;
  • Sharing household chores;
  • 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
  • All other relevant evidence.

While the above statute was enacted in 2014, meaning that it only applies to agreements prior to the enactment date of the statute, the statute memorialized prior case law establishing that cohabitation is a change of circumstances warranting a review of alimony and defining cohabitation.  See Konzelman v. Konzelman,  307 N.J. Super. 150 (App. Div. 1998).

Cohabitation cases are most commonly initiated using the assistance of a private investigator, who will report on the alimony recipient’s public conduct with their alleged romantic partner, such as sharing a residence or spending significant overnights together and sharing chores. The moving spouse may also rely on social media posts, public records, and testimony of third parties. However, as you will see from the above, several of the factors are financial and would require the alimony payor to have access to the alimony recipient’s private financial information.  This information cannot be obtained without a Court Order allowing the alimony payor to obtain discovery of this financial information.  To obtain a Court Order permitting financial discovery, the alimony payor must first make a prima facie showing of cohabitation.

Prima facie is Latin for “at first impression,” meaning the alimony payor must present a surface-level case of cohabitation to be permitted financial discovery.  The applicable case law acknowledges that evidence of all seven of the enumerated factors is NOT required by the moving party to establish a prima facie showing of cohabitation. Rather, the alimony payor need only present evidence supporting the non-financial factors set forth in the cohabitation statute or prior case law, such as recognition of the relationship in the couple’s social and family circle (posts on social media, attending weddings and funerals together); living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship (spending regular overnights together, vacationing together, length of dating relationships); and sharing household chores (taking out the trash, walking the dog, cleaning their partner’s car). While there is case law explaining that all factors need not be presented, it was not clear, and Courts were still looking for the moving party to present evidence of intertwined finances before permitting discovery.

After some confusion in the lower courts, the Supreme Court recently considered the burden of the moving party in Cardali v. Cardali and held that “if the movant presents a certification supported by competent evidence as to at least some of the relevant factors, and if that evidence, if unrebutted, would sustain the movant’s burden of proof as to cohabitation, the trial court should find that the movant has made a prima facie showing even if the spouse or civil union partner receiving alimony presents a certification contesting facts asserted by the movant.” Cardali v. Cardali, Docket No. A-25-22, slip op. at 6 (N.J. Dec. August 8, 2023).  This decision applies to cases that fall under the statute and pre-2014 case law.  This holding makes it clear that the payor spouse need only make a prima facie showing of cohabitation on some of the factors. The Supreme Court also emphasized that a prima facie showing is a low bar.  In other words, even if the alimony recipient provides proofs to the Court that run counter to the factors (separate bank accounts, separate residences), or provides proofs, explanations, and/or clarifications of the proofs submitted by the alimony payor, the Court will not consider the “contesting facts” submitted by the alimony recipient.  Whether you are paying or receiving alimony, it is important to keep this in mind if you are considering filing a cohabitation application or if you are in a dating relationship and want to avoid unnecessary litigation and disclosure of private financial information.

Obermayer Family Law Attorneys are experienced in prosecuting and defending cohabitation applications. If you suspect your former spouse is cohabitating, or if you want to know how to protect yourself from an unwarranted cohabitation application, set up a consultation today.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.

About the Authors

Tessa E. Wagoner


Tessa focuses her practice on all aspects of family law, including divorce, equitable distribution, child and spousal support, custody, mediation, and domestic abuse in the greater Mount Laurel, NJ area. Tessa believes...

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