Cardali v Cardali -The New Jersey Supreme Court recently addressed initial standard of proof required to suspend or terminate alimony in cohabitation cases.
One of the most difficult aspects of an application to the Court to terminate alimony based upon a former spouse’s cohabitation is presenting sufficient evidence to demonstrate that the relationship between a former spouse who receives support and an individual who he/she cohabits with constitutes a change in circumstances sufficient to persuade the Court that discovery is warranted.
On August 8, 2023, the New Jersey Supreme Court provided guidance in Cardali v Cardali when it considered the prima facia (initial) showing of cohabitation that an individual seeking to terminate or suspend alimony needs to present to the trial court to obtain discovery.
The former husband, in Cardali, sought to terminate his alimony obligation alleging that his former wife's 8+ year relationship with an individual constituted cohabitation and that his alimony obligation should therefore be terminated. The trial court denied his application, finding that he did not present a primary facia showing of cohabitation, as he failed to present evidence of a financial relationship between the former spouse and the other person or that the relationship was analogous to a marriage, and did not allow for discovery. The Appellate Division affirmed the trial court's decision, and the Supreme Court granted the former husband's petition for certification.
The Supreme Court addressed the initial showing that is necessary to obtain an order for discovery in cohabitation cases. A prima facia showing of cohabitation is different than presenting the final proofs necessary for a decision on the merits following a hearing. It is a threshold showing required so that the privacy of the party receiving alimony is not invaded in pursuit of a baseless cohabitation claim. The Court clarified and established that it would be unfair to expect the moving party to present evidence of all the factors of cohabitation as defined in Konzelman v Konzelman, 158 N.J. 185, 202 (1999) and N. J. S. A. 2A:34-23(n) in their initial filing. Rather the Court held that the applicant does not need to present proofs with respect to all cohabitation factors to make an initial (prima facia) showing of cohabitation to suspend or terminate alimony. If the applicant presents evidence that, if unrebutted, would sustain the burden of proof as to cohabitation then limited discovery is appropriate.
In fashioning limited discovery, the trial court should take appropriate steps to safeguard the privacy of the individual receiving alimony and the individual with whom that person is alleged to be cohabiting. It should order limited discovery as to the issues it determines relevant to one or more of the cohabitation factors that the govern the case.
Once the limited discovery is completed, supplemental certifications in support of and in opposition to the motion should be filed and if material facts remain in dispute, the trial court will conduct a plenary hearing.
Our family law attorneys at Aronsohn Weiner Salerno & Kaufman have the expertise and experience to guide you in this complex and fact-sensitive area. If you are divorced and suspect that your former spouse may be cohabiting with another individual call our offices to schedule an appointment.