by John S. Eory Esq.

On September 6, 2012, the Appellate Division of the New Jersey Superior Court issued an opinion on the thorny subject of a former spouse’s right to continue receiving alimony if he/she is cohabiting with a person outside of marriage.

In Gould v. Gould, the parties were married in 1995, had three children, and divorced in 2009. Under the terms of their divorce settlement, Mr. Gould agreed to pay alimony until 2019. The Agreement stated that Mr. Gould would be permitted to seek a cessation of alimony if Ms. Gould cohabitated with someone else. Ms. Gould acknowledged that she had been seeing another man, identified only as M.J., since 2008, a year before the divorce became final.

In January, 2011, Mr. Gould made an application to modify or terminate his alimony obligation based on Ms. Gould’s alleged cohabitation with M.J. At the very least, Mr. Gould stated that he was entitled to discovery or an evidential hearing on the issue. Mr. Gould stated that M.J. maintained a “sham residence” and actually lived with Ms. Gould, to include keeping a closet full of clothes at Ms. Gould’s house, helping with the children and going on vacations with Ms. Gould and the children. Mr. Gould also found a piece of mail addressed to M.J. in Ms. Gould’s mailbox. Based on this information, Mr. Gould hired a private investigator who staked out Ms. Gould’s house for six nights during which M.J. was there for at least some period each night and overnight when the children were with Mr. Gould.

Although Ms. Gould acknowledged her romantic relationship and admitted that M.J helped with the children and went on vacation with them, she stated that M.J. only kept his clothes at her house so he could change after using the exercise equipment. She further stated that they did not share finances, that M.J. did not help pay her bills, and that they were not in a “marital-type relationship.”

The trial court determined that Mr. Gould had not presented enough evidence to warrant discovery or justify a change in his alimony obligation. Mr. Gould appealed.

The Appellate Division agreed with the trial court that there was no rebuttable evidence of cohabitation, stating that the private investigator’s findings only provided a “brief snapshot” of the relationship between Ms. Gould and M.J. In dismissing Mr. Gould’s appeal, the Court refined the doctrine of Konzelman v Konzelman, as decided by the New Jersey Supreme Court in 1999, which required a showing that a couple shares an "intimate" and "stable" relationship which involved not only living together but which included shared finances and a general recognition by family and the community of being in a committed relationship with a sense of permanency.

While the Gould decision will receive criticism in some quarters, it is thoroughly consistent with the body of New Jersey law on this topic by seeking to balance the realities of post divorce life against the financial obligations imposed upon persons paying alimony.

Since such cases are uniquely fact-sensitive, there is no template to fit the myriad variations on the subject of alimony and cohabitation. It is important that persons on either side of the situation obtain skilled legal advice before determining how to proceed.

John Eory is the Co-Chair of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Mr. Eory: jeory@stark-stark.com.

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