One way to modify or terminate your alimony obligation is if the dependent spouse has begun cohabitating with an unrelated individual. The court utilizes a two-part test to determine when a dependent spouse’s cohabitation constitutes “changed circumstances” justifying a downward modification of alimony. First, the payor spouse must make a prima facie showing that the dependent spouse is cohabitating. Ozolins v. Ozolins, 308 N.J. Super. 243, 245 (App. Div. 1998). Proof of cohabitation creates a rebuttable presumption of changed circumstances. Id. at 248. Then, the burden shifts to the payee spouse to show a continuing need for support. Id. at 245. It is the extent of actual economic dependency, not one’s conduct as a cohabitant which determines the duration and amount of support. Gayet v. Gayet, 92 N.J. 149, 154 (1980)
To prove that the dependent spouse is cohabitating, the supporting spouse offers evidence of an intimate relationship in which the couple has undertaken duties and privileges commonly associated with marriage. Konzelman v. Konzelman, 158 N.J. 185, 202 (1999). These may include joint bank accounts, sharing living expenses and household chores, holding themselves out as a social “couple”, and sharing common meals. Id.; Rose v. Csapo, 359 N.J. Super. 53, 62 (Ch. Div. 2002).
To prove that the dependent spouse still requires support, the dependent spouse must show that there is no actual economic benefit to the dependent spouse or the cohabitant; this is often referred to as the “economic needs” test. An economic benefit will be found, and alimony reduced accordingly, if “(1) the cohabitant contributes to the dependent spouse’s support, or (2) the cohabitant resides in the dependent spouse’s home without contributing anything toward the household expenses.” Gayet, 92 N.J. at 153. Essentially, the court may permit modification of alimony if one cohabitant subsidizes the other in some way, thus entitling the supporting spouse to relief. Id.
If your ex-spouse is cohabitating with an unrelated individual please contact our offices and schedule and appointment to discuss your options.
