NJ Supreme Court Issues Important Decision on Cohabitation
Aug 18, 2023 | Written by: | Share
On August 8, 2023, the New Jersey Supreme Court decided the case of Cardali v. Cardali (A-25-22) (087340). The Court considered what a party seeking to suspend or terminate alimony must present in order to make a prima facie showing of cohabitation to obtain additional information from the other party and his/her boyfriend or girlfriend. That additional information, usually financial in nature, is obtained through a process known as “discovery.”
The Cardalis settled their divorce case and entered into a property settlement agreement, which was incorporated in their judgment of divorce in December 2006. Mr. Cardali agreed to pay Ms. Cardali alimony. Their agreement provided that Mr. Cardali’s obligation to pay Ms. Cardali alimony would end upon her cohabitation “as defined under New Jersey law.”
In December 2020, Mr. Cardali filed a motion to terminate his alimony obligation based on his belief that Ms. Cardali and her boyfriend, Bruce McDermott, had been in a relationship similar to a marriage for more than eight years. Mr. Cardali alleged that during their relationship they attended family functions and other social events as a couple, memorialized their relationship on social media, and vacationed together. As part of his motion, Mr. Cardali also relied upon a report from a private investigator confirming that Ms. Cardali and her boyfriend were together on all of the forty-four days that the private investigator surveilled them, and they were together overnight on more than half of those days. The investigator’s report included photographs of Ms. Cardali and her boyfriend essentially doing chores together such as carrying groceries, taking laundry in and out of each other’s residences, etc. The investigator also confirmed that Ms. Cardali had access to Mr. McDermott’s home when Mr. McDermott was not at home.
The trial court denied Mr. Cardali’s application, finding he had not met his prima facie showing of cohabitation to warrant additional “discovery” of financial information, and the Appellate Division affirmed. It was appealed to the Supreme Court, and the Supreme Court addressed the limited questions about whether Mr. Cardali made a prima facie showing and, therefore, whether he was entitled to discovery (financial information from Ms. Cardali and her boyfriend). Cardali, 252 N.J. 465(2023).
The Supreme Court determined that a moving party such as Mr. Cardali does not need to present evidence of all cohabitation factors in the case law or the statute. If evidence is provided that would warrant a finding of cohabitation, if unrebutted, the Trial Court should determine that the moving party has presented sufficient prima facie evidence to grant discovery tailored to the issues contested in the motion. The Court went on to determine that the financial relationship between a former spouse receiving alimony and his/her boyfriend or girlfriend is not itself dispositive but is addressed in three of the seven factors to be considered by the trial court. The Supreme Court also noted that without having access to information from the former spouse receiving alimony and his/her boyfriend or girlfriend, a moving party does not have access to the documents relevant to the financial factors. If a moving party presents evidence as to at least some of the relevant factors that, if unrebutted, would provide proof as to cohabitation, the Court should find a prima facie showing even if the former spouse receiving alimony contests the facts asserted by the moving party.
Although it determined that Mr. Cardali met his initial burden of a prima facie showing of cohabitation, the Court did note that discovery or an exchange of information should be limited to the discrete issues relevant to the cohabitation factors, and appropriate steps should be taken to safeguard the privacy of the former spouse receiving alimony and his/her boyfriend’s or girlfriend’s information. The Court also went on to note that after completion of the limited discovery, the parties should file supplemental certifications, and if material facts remain in dispute after that, a plenary hearing must be held to decide whether alimony should be suspended or terminated based on cohabitation.
In reversing the judgment of the Appellate Division, the Supreme Court remanded the matter back to the Trial Court for further proceedings, which would include limited discovery and a determination as to whether a hearing should be held.
This decision clarified what a party must show to make a prima facie case of cohabitation. There has always been a dilemma as to how the moving party can address the financial factors relating to cohabitation, specifically three of the seven factors in the statute including:
- Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
- Sharing or joint responsibility for living expenses; and
- The existence of an “enforceable promise of support.”
An individual filing a motion to suspend or terminate alimony rarely, if ever, would have access to this financial information prior to filing the motion. The Supreme Court decision has basically provided that when addressing the remaining factors (non-financial), if unrebutted would result in a prima facie showing of cohabitation, then the moving party has sustained the burden of showing a prima facie case of cohabitation. In that case, the Court can then order discovery permitting the moving party to obtain the financial information from the former spouse and spouse’s boyfriend/girlfriend.
This was a fair and appropriate decision by the Supreme Court. Prior to this decision, the supported former spouse receiving alimony would simply make the argument that there was no proof of cohabitation based upon the lack of information regarding intertwined finances, despite the fact that the moving party had no access to that information to determine whether these factors applied. How could the moving party prove intertwined finances without access to the information, i.e., bank statements and other financial records that are within the possession of the party opposing the motion? The Supreme Court has helped to resolve this dilemma.
Cohabitation is an important financial issue relating to alimony. It can be complicated and very fact-sensitive, and a family law attorney can help with this issue. If you have questions regarding cohabitation or other family law issues, please contact me at brudnik@gklegal.com or 908-735-5161.
William J. Rudnik, Esq. is a partner with Gebhardt & Kiefer, PC. He is certified by the NJ Supreme Court as a Matrimonial Law Attorney. In addition to handling divorce litigation, he is qualified as a Mediator in the field of Family Law under the New Jersey Court rules, and he is trained in Collaborative Divorce. Contact Mr. Rudnik at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.