The state Supreme Court unanimously held that a movant is not required to present evidence on all cohabitation factors set forth in case law and the statute to make a prima facie showing of cohabitation when seeking termination of alimony. The New Jersey State Bar Association urged this result as an amicus party in the matter of Cardali v. Cardali. Immediate Past NJSBA President Jeralyn L. Lawrence argued before the Court, relying on the brief authored by Lawrence, Past Family Law Section Chair Derek M. Freed, NJSBA President Timothy F. McGoughran, Catherine Murphy and Brian G. Paul.
“The decision clarifies long-standing questions of what information needs to be presented before a request for termination of alimony based on cohabitation can move forward,” said McGoughran. “The fact that the Court also concurred with our amicus arguments that the determination of whether a plenary hearing should be conducted must be decided following discovery, not beforehand, is an important step forward in ensuring fairness in the determination.”
Notably, the Court reversed and remanded the lower court decision, finding that while the defendant did not proffer evidence that the plaintiff and her paramour had “intertwined finances such as joint bank accounts” or that they were “sharing living expenses” – both factors set forth in Konzelman v. Konzelman, 158 N.J. 185 (1999) and N.J.S.A. 2A:34-23(n) – if other cohabitation factors exist, the defendant must be afforded an opportunity to seek appropriate discovery. The Court acknowledged that steps should be taken to protect the privacy of the spouse or civil union partner receiving alimony and the individual with whom the person is alleged to be cohabiting.
The decision provides much-needed clarity in the termination of alimony matters involving cohabitation. It was an area rife with confusion, frustration and inconsistent adjudications, according to the NJSBA. “In this case, the Court has the opportunity to provide clear and unequivocal guidance on the standard for establishing a prima facie case of cohabitation, the quantum of evidence a party must submit on their initial application in order to obtain discovery, and the burden of proof, which shifts to the alimony recipient to prove they are not cohabiting once a prima facie case is established,” said the NJSBA in its brief. “By doing so, the Court can promote fairness and equity by ensuring consistent application of the law throughout our state and streamlining the litigation process.”
In addition to its holding, the Court requested that the Family Practice Committee propose amendments to the court rules governing discovery in cohabitation cases and uniform interrogatories to streamline the discovery process in these cases.
“Our current Family Part court rules do not address post-judgment discovery in connection with a motion to terminate or suspend alimony based on cohabitation,” said the Court.
The NJSBA said the decision would “help practitioners and the public they serve as they navigate difficult chapters in their personal lives.” The Association will continue to monitor the issue regarding the rules in order to ensure implementation of the Court’s recommendations.
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.