Meeting Your Initial Cohabitation Burden of Proof is in Eyes of the Judicial Beholder

In many areas of family law, the ultimate result in a case resides within the discretion of a trial judge based on that judge’s review of the specific facts and circumstances at issue. To some degree, different judges will almost always have a different view of the same set of facts and how those facts apply to the law. In fact, the same judge may have a different view of the same set of facts depending on the case before the court. Thus, as much as you may believe as a litigant or attorney that you will undoubtedly procure a certain result after the judge considers your case, the unpredictability of a potential outcome is one reason why almost every case settles.

This is especially true in the area of cohabitation. In fact, there are few areas of family law more dependent on facts than when a payor seeks to terminate his/her alimony obligation based on the payee spouse’s cohabitation “with an unrelated adult male in a relationship tantamount to marriage.” For instance, attorneys often submit surveillance reports from private investigators allegedly providing proof of cohabitation. As such reports are oftentimes only one of many pieces of evidence submitted as part of a payor’s initial request to terminate alimony, what does the report need to show to convince a trial judge that the payor has fulfilled his burden of proof that will merit a future hearing to determine what should happen to alimony?

Having spoken with several trial judges on this issue, each judge (not surprisingly) has a different answer as to how much evidence is enough evidence to get beyond the first phase, which only renders difficult a determination as to whether you have enough proof of cohabitation to file your initial motion. For instance, a report showing that an alleged cohabitant is staying overnight at the payee’s home 50% of the time over a multi-month period may be enough for some judges, but not enough for others. When supplementing that proof with a slew of social media posts of the payee and cohabitant together, will the judge view those posts in the same way that you do? For instance, one judge may view the cohabitant accompanying the payee to a child’s graduation ceremony as just a loving and dutiful boyfriend, while another may view the cohabitant as attending such an event as a family member. One thing is almost always for certain – the payor will argue that cohabitation exists while the payee will argue to the contrary.

The situation before the Appellate Division in Mennen v. Mennen, a recently decided unpublished (not precedential) in which the Appellate Division affirmed the trial court’s determination that the payor failed to get beyond the first phase – i.e., he failed to meet his initial burden of proving cohabitation that would entitle him to further information from his former spouse and a future hearing.

Many facts and arguments are outlined below, showing the level of factual intricacies that can weigh a trial judge one way or another in granting the initial motion filed by the payor former spouse:

The parties were divorced in January 2004 after a 13-year marriage.

Payor agreed to pay to payee $5,500 in monthly permanent alimony, plus annual increases based on the Consumer Price Index percentage.

The agreement provided as to cohabitation:

Alimony shall cease and terminate at the earliest to occur of the Husband's death, the Wife's death, or the Wife's remarriage. In the event of the Wife's cohabitation in the future with an unrelated person in a relationship tantamount to marriage after the sale of the property referred to in Article IV Paragraph 14 above, the Husband's obligation to pay alimony to the Wife may be revisited in accordance with the principles set forth in Gayet v. Gayet, 92 N.J. 149, 456 A.2d 102 (1983) and its progeny.

Payor argued that payee had maintained a longstanding relationship with a significant other and that the two of them “allegedly interact and hold themselves out as the equivalent of spouses.”

In support of his position, payor provided a private investigator’s report alleging:

The cohabitant was present 88% of the time during 32 of the investigator’s visits spanning a 4 ½ month period of time.
The decision indicated that the surveillance was conducted "early morning," "late evening," and during the "middle of the night"; during the week, weekends, and holidays; and on consecutive and alternating days.
The investigator noted a pattern of visits, whereby the alleged cohabitant would leave the payee’s home between 6:15 a.m. and 6:30 a.m.
The alleged cohabitant had a garage door opener to payee’s home.
The alleged cohabitant neither owns or rents property in New Jersey, uses a P.O. Box at a UPS store in Chester as his address and on his driver’s license, and he listed payee’s address as his residence on two separate occasions.
Photos taken by the investigator from Facebook were submitted, including photos showing the alleged cohabitant’s attendance at the wedding of payee’s daughter.
A search of current trade lines, recent inquiries and current creditors revealed that the alleged cohabitant had used the former marital home on two occasions between 2008 and 2016.
The payee and alleged cohabitant shared two credit cards.
A search revealed that the alleged cohabitant was associated with the payee’s Social Security Number.

In opposition, payee:

Certified her significant other resided with his brother 45 minutes from her home
They were dating since 2009.
They were photographed at social events.
In 31 Facebook photographs, significant other was in only 5 over a 7 year period.
There were no photographs of payee on significant other’s Facebook page.
Significant other lost his home to a short sale in 2015, sold his New York home, and filed for bankruptcy in January 2014. In his bankruptcy petition, significant other listed no co-debtors, no co-signors and no guarantors.
Significant other had a garage door opener to payee’s home, but no key to enter.
Significant other stayed with her while performing contracting work at a Morris Township residence because of the shorter drive to his brother’s home where he lived.
Significant other used payee’s vehicle only once during the surveillance period.
No evidence supported the investigator’s conclusion that significant other listed the marital home as his address on “official documents.”
Regarding a vehicle accident involving one of the parties’ daughters at significant other’s New York home, payee never asserted an equitable or legal interest in the property. While she and significant others were listed as co-defendants in a personal injury action filed on the child’s behalf, a settlement occurred in the child’s favor without an admission of liability and significant other’s insurance company paid said settlement.
None of the trash pulls by the investigator pulled any items addressed to or belonging to significant other, and most items pertained to females or children.
The investigator report was “stale” – it was eight months old when the motion was filed. Payee also argued the findings in the report were exaggerated and unsupported.

In denying the payor’s motion, the trial judge concluded:

The investigator’s report was deemed overreaching and some conclusions were unsupported.

The judge took issue with the fact that the adult children did not submit certifications in support of the payor’s motion. I have found in my experience that different judges hold different views as to whether the children should get involved in such matters, no matter what their age.

The judge took issue with the surveillance events only occurring in the “late evening and/or early morning hours”, significant other’s vehicle was “only” observed on 32 of 38 occasions, and the significant number of overnights observed were “for the very limited” period specified in the report. Different judges would likely view these same details very differently (both for and against the fulfillment of the payor’s initial proof burden) in determining if such surveillance was compelling enough to warrant a future hearing.

Finally, the judge noted:

“I don't find anything unreasonable in the concerns that [defendant] has given the long-term relationship. And while he did not as I say get over the bar of proving a prima facie case, I don't find that filing this motion was unreasonable. I think he may have confused as I said motive. You know [significant other] did have serious financial difficulties. And it would be logical for someone to assume that he was relying on support from the [plaintiff]. But again there's just an absence of proof of that.”

In affirming the trial court’s decision, the Appellate Division found the trial court did not abuse its discretion and focused on the lack of proofs regarding finances, which is an oftentimes a difficult factor to prove when filing the initial motion because the payor is not entitled to any discovery/documentation from the payee or significant other until the initial motion is granted. It provided:

We are mindful that the materials submitted to the motion judge — including the Facebook posting of [significant other] — reflect that he and plaintiff take part with one another in a variety of social and family activities, and attended her daughter's wedding, family gatherings, and other such events together. Even so, the present record lacks any evidence that the couple's finances are intertwined or that plaintiff is financially dependent upon her significant other. Here, we agree with the judge that the defendant failed to establish a prima facie case of cohabitation, and we find no abuse of discretion.

Acknowledging the proof difficulty as to this factor in the cohabitation analysis, the Appellate Court even provided, “While we acknowledge that economic interdependence is difficult to prove, defendant presented no proof whatsoever to support his claim of cohabitation.”

The Court also noted that the payor could file a future motion with appropriate proofs, but, ultimately and especially in cohabitation matters, once the proverbial “cat is out of the bag”, successfully proving cohabitation likely only becomes more difficult with time.

The Takeaway

So where does this decision leave us? Every case, especially in cohabitation matters, is not only fact-specific but also depends on the trial judge reviewing the matter and the arguments being made. This certainly does not make the decision any easier regarding whether you have enough evidence to file the initial motion. When deciding whether to file a cohabitation motion on behalf of a payor, always remember that the more water you have in your “cup of proofs”, the better chance of success you will have.