• Dean Smith

New Jersey’s Appellate Division Ruling Places Renewed Scrutiny on Cohabitation

Proving cohabitation is an effective method to reduce or eliminate alimony payments. Provided a court agrees that your ex-spouse is cohabitating with another individual, that is. The key is proving to the evaluating judge whether the ex-spouse has entered such an arrangement, and the judge who evaluates the relationship will render a decision based on the evidence a payor submits.

Following the New Jersey Alimony Reform Act of 2014, an alimony recipient does not have to share a residence for a relationship to meet the criteria for “cohabitation.” This alleviated the payor’s burden of proof, but simultaneously strengthened the relevance of proving that an ex-spouse is involved in a relationship with an intimate partner.

Two recent rulings by the Appellate Division show the court is taking a harder look at the latter, the “relevance of proving that an ex-spouse is involved in a relationship with an intimate partner.” In Landau vs Landau and Gatto vs Breton, a payor was attempting to revise their alimony payments based on proving cohabitation. In both cases, the courts reversed improvidently granted discovery based on insufficiently proven cohabitation.


In other words, a payor must prove the payee has had a “change of circumstance,” and the evidence must be compelling, or the case can’t move forward.

In Gatto vs Breton, where the trial court order permitted the payor to obtain a custody evaluation without the requisite finding of changed circumstances. The payee submitted a certification from a private investigator who asserted the payee and her boyfriend “cohabit in each other’s residence approximately 75% of the time period examined.”

Small problem. The investigator only spotted the payee or her boyfriend leaving the other’s home in the morning on two occasions. Generally, to modify either custody or support, the payor must make a prima facie, i.e. prove you’ve assembled sufficient evidence to raise questions, showing of changed circumstances, before the court will grant discovery. In other words, the payee’s evidence wasn’t conclusive.

The court shared a similar view during In Landau vs Landau, the judge allowed the husband to conduct very broad and intrusive discovery to try to be able to make a prima facie showing of cohabitation. The Appellate Division first stayed and then reversed the trial court’s order allowing discovery, stating there was no question that a prima facie showing of cohabitation can be difficult to establish, and that the available evidence was consistent with a relationship or a cohabitation relationship, but that was hardly a new problem, nor did it justify the invasion of defendant’s privacy.

Thus, the courts will likely place a stronger emphasis on the proof a payee brings when attempting to revise alimony or support agreements. People hoping to use cohabitation arguments would do well to remember the state’s requirements and prepare to show strong, conclusive proof that meet the court’s criteria(s), which includes:

•Whether the couple share combined finances

•The sharing of household chores

•Whether the couple shares a residence and regularly interacts in a social manner

•Relationship length

•Shared living expenses

•Whether family and friends acknowledge the pair as a couple

•Whether the couple have a promise of support between them

•Any other demonstrable evidence the court finds significant

private investigator

private investigator nj

  • YouTube
  • Instagram
  • Pinterest
  • Facebook
  • Twitter
  • LinkedIn

private investigator cost

private investigator near me