…When Alimony/Cohabitation Is at Issue
By Eric S. Solotoff and Jessica Diamond Lia
It’s well known that a divorced spouse receiving alimony who moves in with a new significant other often forfeits his/her alimony.
Few, however, are familiar with that process. A recent New Jersey court case demonstrates that simply refusing to cooperate is not a smart strategy if you are an allegedly cohabitating spouse.
When the court decides whether to terminate or reduce alimony because the recipient has moved in with a new partner, it follows a multistep process. The first step is for the alimony-paying spouse to file a motion providing proof of cohabitation to show a prima facie case. The New Jersey Supreme Court in Cardali v. Cardali reminded trial courts and practitioners alike that this should not be a heavy burden.
The second step is discovery. The alleged cohabitating spouse must provide financial documentation regarding the cohabitation and finances, including any financial interdependence between the alimony recipient and the proposed cohabitant. Intertwined finances and/or one cohabitant supporting the other are relevant.
The third step is typically a plenary hearing (trial) at which the trial court hears the evidence and makes a determination.
It is uncommon to see alimony terminated before step 3. But that is what happened in Winner v. Winner, an unreported (non-precedential) Appellate Division decision released on Feb. 21, 2025.
In Winner, the parties were divorced in 2011, and the husband was required to pay alimony. In July 2022, after hiring a private investigator, the husband filed a motion to terminate, suspend, or modify alimony based on cohabitation. In September 2022, the trial court found that the husband had met his prima facie burden and ordered the filing of Case Information Statements (CIS), discovery, and a plenary hearing. The discovery was to be completed by Nov. 30, 2022.
His ex-spouse sought to extend discovery and then refused to answer discovery or file a CIS. She repeatedly refused to provide financial discovery in response to discovery demands or court orders. Rather, she filed numerous motions, including repeated motions to quash subpoenas.
On July 12, 2023, the trial court heard multiple motions and put an end to the games. At that hearing, the court granted the ex-husband’s motion to bar his ex-wife’s opposition to terminate alimony. The basis of the decision was the wife’s “…intentional and material refusal to comply with discovery orders, ‘according to Rule 4:23-2.’ ”
The court then found that the husband had proven cohabitation as well as financial entanglements between the wife and the alleged cohabitant based on the limited financial information he was able to obtain via subpoenas. The court specifically found the commingling of funds for various purposes. The court also noted that the wife received a substantial inheritance that she failed to fully disclose.
The wife appealed, and the Appellate Division affirmed the decision.
The takeaway from this case is this: Not cooperating is not an option. The wife brazenly defied orders and the court made her pay. The other lesson is that in certain limited situations, alimony can be terminated without a plenary hearing.
Questions about alimony or other family law issues? Contact Eric S. Solotoff, Co-Chair of Fox Rothschild’s Family Law Department, at esolotoff@foxrothschild.com or 973.994.7501; or Jessica Diamond Lia, a Partner in the firm’s Family Law Department, at jlia@foxrothschild.com or 973.992.7517.
