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Bob Cowan - Owner of Cowan Investigations, a New Jersey Private Investigator

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As the Owner of Cowan Investigations and the firms primary New Jersey Based Private Investigator it has been my mission to focus and become an expert in providing litigation support in divorce-related issues, specifically Child Custody and/or Alimony Elimination or Reduction investigations through the documentation of Cohabitation as well as other relevant factors. I obtain my knowledge of family law by incessantly studying all cases related to Alimony and child Custody, it is extremely helpful to have a basis of knowledge in the constantly changing landscape of New Jersey Family Law precedent making decisions related to Alimony/Cohabitation as well as Child Custody Court decisions.

The Revision to the New Jersey Alimony Laws which occurred in September 2014 clearly compels attorneys and New Jersey Family Courts that two individuals do not have to reside together full-time in order for cohabitation to be established in a case in which alimony payments might be modified or terminated. Although living together is definitely a factor Courts will consider when determining whether cohabitation exists or does not, how often the couple spend overnight together has not yet been affirmatively addressed by statute or case law.

In Wachtell V. Wachtell a Cohabitation Case decided in April of 2015, which of course was post 2014, New Jersey Alimony Revision Law, the New Jersey Appellate Court made some clarifications in regard to the 2014 Alimony/Cohabitation Law, focusing much of their decision on the “separate residence change” regarding the 2014 revision to the law and the fact that Cohabitation can be proved “evein if the subjects maintain separate residences.  A significant issue in the Wachtell V. Wachtell (but not the controlling issue) had been the fact that the husband who was the Payor of the alimony (a sum of up to $450,000.00 per year) hired a Licensed New Jersey Private Investigator to investigate the living arrangements of his ex-wife whom he had reason to believe was cohabiting with a male significant other. The New Jersey Private Investigator documented the fact that he had evidence indicated the ex-wife and significant other had spent three consecutive nights together over a four day period (to play Monday Morning Quarterback as a New Jersey Private Investigator I am of the STRONG OPINION the amount of surveillance conducted on the subjects was a wholly inadequate period of time to conduct surveillance and I am not the least bit surprised at the resolution that occurred when the matter reached the New Jersey Appellate Court, I hope I didn’t give away the ending).

Paragraph 22 of the PSA sets forth negotiated terms under which alimony may be terminated. The typewritten portion of paragraph 22 reads as follows

  1. The alimony payable to the wife shall be payable until the following events
  2. The death of the Husband;
  3. The death of the Wife;
  4. Cohabitation of the wife with a male that is unrelated to her by blood or marriage in a relationship that is tantamount to marriage;
  5. The husband’s retirement on or after age 65;
  6. Remarriage of the Wife[.]

As Per The Legal Resource Justia The New Jersey Family Law  Motion Court Ruled As Follows (link provided at conclusion):

the ex-husband had demonstrated cohabitation by the ex-wife within the meaning of New Jersey case law, including Konzelman v. Konzelman, 158 N.J. 185 (1999), and its progeny. The judge determined in his oral opinion that the ex-wife was clearly “in a serious committed relationship tantamount to marriage.” The judge found it particularly significant that the ex-wife acknowledged staying overnight with the paramour, on average, two or three nights weekly. The judge also was unswayed by the fact that the ex-wife and the paramour kept separate finances, in light of the handwritten amendment to PSA paragraph 22 eliminating the ex-husband’s burden to prove economic dependency. Accordingly, the judge granted the ex-husband’s motion to terminate alimony and denied the ex-wife’s cross-motions.

The New Jersey Appellate Court Decision Is provided Also as Per The Justia Legal Resource (Link Provided):

 On appeal, the ex-wife argues that the motion judge erred in finding that she and her paramour had been in a relationship tantamount to marriage. She emphasizes that no published case in New Jersey has yet to find or to affirm a finding of cohabitation where the former spouse and paramour were spending three days or less per week overnight. The ex-wife further contends that, at a minimum, the trial court should have conducted an evidentiary hearing to assess the credibility of the ex-husband’s claims that the couple was spending four or more nights each week together. She renews her contention that the ex-husband engaged in improper behavior by entangling their older son in their post-divorce alimony dispute and in using the son to surreptitiously gain access to the paramour’s townhouse.

The ex-wife also requests that we direct the trial court to grant her cross-motion for document production and other relief in aid of litigant’s rights. Lastly, the ex-wife avers that her relationship with the paramour has ceased, and that, at a minimum, her right to alimony should now be revived.

The legal criteria for cohabitation have been long established by case law in this State.2 As the Supreme Court noted in Konzelman, supra, cohabitation is typified by the existence of a relationship “shown to have stability, permanency, and mutual interdependence.” 158 N.J. at 202; see also Reese v. Weis, 430 N.J. Super. 552, 570 (App. Div. 2013) (similarly noting that “[c]ohabitation involves ‘an intimate[,]’ ‘close and enduring’ relationship, requiring ‘more than a common residence’ or mere sexual liaison”) (citation omitted). Although “living together, intertwined finances such as joint bank accounts, shared living expenses and household chores” may support a finding of cohabitation, such illustrative examples must not be considered in a vacuum. Konzelman, supra, 158 N.J. at 202. Moreover, as the motion judge correctly recognized, the parties are free to agree, as they did here in the handwritten amendment to paragraph 22 of the PSA, that proof of economic dependency as a predicate to a finding of cohabitation may be waived. Id. at 197.

Procedurally, an alimony payor who alleges cohabitation must first present a prima facie case that his or her former spouse is in such a relationship tantamount to marriage. See Gayet v. Gayet, 92 N.J. 149, 154-55 (1983). If such a prima facie showing is made, the disputing ex-spouses may engage in mutual discovery. See ibid.

It is customary for the factual disputes relating to the alleged cohabitation to be resolved at a plenary hearing, at which the trial judge can evaluate the credibility of the competing witnesses. See, e.g., Winegarden v. Winegarden, 316 N.J. Super. 52, 56 n.1 (App. Div. 1998). Conducting such a plenary hearing in cohabitation disputes is consistent with the general principle in post-judgment matrimonial cases that “[d]isputes of material fact should not be resolved on the basis of [written] certifications.” Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006); see also Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). The need for a plenary hearing is not inexorable, however, and a hearing may be dispensed with if there are no disputed issues of material fact and the matter is otherwise suited for disposition on the papers. See, e.g., Segal v. Lynch, 417 N.J. Super. 627, 642-43 (App. Div. 2011), aff’d in part and rev’d in part, 211 N.J. 230, 266 (2012) (analogously upholding the denial of an evidentiary hearing on child custody issues where no genuine material issues existed); see also Barblock v. Barblock, 383 N.J. Super. 114, 127 (App. Div.) (similarly dispensing with the need for an evidentiary hearing in an interstate child relocation context where no material factual issues needed to be resolved), certif. denied, 187 N.J. 81 (2006).

We agree with the ex-husband that his motion submissions in this case set forth a prima facie showing of cohabitation. We part company with the trial court, however, insofar as it found a plenary hearing unnecessary. In particular, we are satisfied that such a plenary hearing is required to resolve the key factual dispute over whether, as the ex-wife contended, she and her paramour generally stayed overnight together only two or three nights per week, as opposed to the ex-husband’s claims that the average number of overnights was four or more.

The frequency of overnight stays, while not completely dispositive, is an important core factor in any cohabitation analysis. Simply stated, people must cohabit to a substantial degree in order for there to be cohabitation.

Accepting, for the sake of discussion, the ex-wife’s contention that she stayed with her paramour, on average, two or three overnights per week, that means that she and her paramour were staying the majority of evenings at their respective separate residences. Two or three overnights each week is arguably more consistent with a romantic dating relationship than a relationship tantamount to marriage.

Although we surely recognize that some married couples will spend a majority of their nights apart due to employment, business travel, education and training programs, caring for a sick relative, and so on, the actual frequency of overnight stays between two unmarried persons is nonetheless an important indicia of the nature and intensity of the relationship. The motion judge should not have presumed without an evidentiary hearing that two or three weekly overnights would suffice in this case to equate to cohabitation, especially since no published opinion in New Jersey has found cohabitation in fact patterns with such infrequent stays.

Moreover, there are other material factual allegations in the certifications that do not appear to have been conceded by the opposing party, such as the frequency of the couple’s dinners together, and whether they paid their own way, which could be relevant even though economic dependence is not required. We also need not decide here whether two or three average weekly overnights could be legally sufficient if significant other indicia favored cohabitation. We simply rule only that the specific admissions by the ex-wife and the paramour here, including two or three weekly overnights, are insufficient to establish cohabitation on the present record as a matter of law.

We decline the ex-wife’s request that the ex-husband’s motion to terminate alimony be denied on equitable grounds because of his recruitment of the older son as a fact witness. Although we sternly disapprove of the son’s foolish decision to allow his divorced father into the home of his divorced mother’s boyfriend without the latter’s consent, the record does not reflect that any significant additional supporting facts were gleaned from that improvident entry. Indeed, the ex-wife’s attorney acknowledged during oral argument before us that the evidence obtained from the ex-husband’s entry into the paramour’s townhouse was not considerable.

There is little doubt that the paramour would not have wanted or expected the son to bring his father into the townhouse while the paramour was away. The scope of the permission the paramour gave to the son to enter his house to feed his dogs surely did not extend to his girlfriend’s former husband. Even so, although the paramour could have pursued civil or criminal redress for trespass, he apparently chose not to do so. The ex-wife would not have standing herself to complain about a trespass of a third-party’s premises. Moreover, it is not clear that the parties intended in paragraph 6 of the PSA to regulate their children’s activities and alliances with their respective parents after they attained the age of majority.

If the ex-husband again offers his own observations, photographs, or any other evidence which he uncovered in his entry into the paramour’s house, the trial court shall consider whether the PSA was intended to limit the parents’ relationships with the children into their adulthood, whether it is appropriate to create a suppression remedy, and whether any other sanctions should be imposed against the ex-husband.

For these reasons, we vacate the trial court’s order terminating alimony and remand the disputed cohabitation issue for a plenary hearing. The court shall only consider testimony and other proofs allowable under the Rules of Evidence at the hearing, and shall not consider inadmissible hearsay, including the previously-filed certifications. Pending the outcome of that hearing, the monthly alimony shall continue to be paid into and held in escrow.

Depending upon the outcome of the remand hearing, the trial court shall also address the ex-wife’s cross-motion. The trial court shall also consider her recently-asserted claim that her relationship with the paramour is now over and that her right to alimony, at the very least, should be reinstated. See, e.g., Garlinger v. Garlinger, 137 N.J. Super. 56, 65 (App. Div. 1975) (approving the suspension, rather than the termination, of alimony where the period of the alimony recipient’s cohabitation only lasted a two-month period). We express no advisory opinion as to whether, as a matter of law, under these circumstances predating the new alimony statute, the ex-wife would have a legal or factual basis to reinstate her alimony claim if her prior cohabitation is conclusively proven at an evidentiary hearing on remand.3

Vacated and remanded for a plenary hearing. We do not retain jurisdiction. If either party seeks review of the decision on remand, he or she must file a new notice of appeal.

1 We note that plaintiff had different counsel representing her in the trial court.

2 As the parties acknowledge, the recent amendment to the alimony statute, N.J.S.A. 2A:34-23 (eff. Sept. 10, 2014), including its cohabitation provisions, is not to be construed to modify “specifically bargained for contractual provisions” in a final judgment of divorce, see L. 2014, c. 42, 2, and thus does not retroactively apply to the issues presently on appeal.

3 We note in passing that the new amended statute does provide for the “suspension” and revival of alimony in certain temporary cohabitation scenarios. See N.J.S.A. 2A:34-23(n) (noting that “[a]limony may be suspended or terminated if the payee cohabits with another person”).



About the author:  Bob Cowan is the owner of Cowan Investigations a full service New Jersey Private Investigations Firm, Bob is the former Chief of the Jersey City Police Department and has 35 years experience as a police officer in New Jersey’s second largest municipality.

If you wish to speak with me regarding this article, or if you need a consultation regarding it’s contents please do not hesitate to call me at 732-837-8444, seven days a week 8:00am to 8:00pm.  


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