Cohabitation & Alimony


On September 12, 2019, the New Jersey Appellate Division released its opinion in Landau v. Landau, ___N.J. Super. ___(App. Div. 2019). Of the many New Jersey opinions decided each year, few are actually chosen for publication as precedential. And Landau is noteworthy for a number of reasons.

First, the amount in controversy was unusual. At stake was the termination (asserted by the ex-husband)  or the continuation (asserted by the ex-wife)  of alimony payments of $40,000 per month or $480,000 per year. These payments had been agreed to as part of their 2014 New Jersey divorce agreement. Three years later, in 2017, alleging that his ex-wife was cohabiting with a man she had been seeing exclusively for over a year and relying on the anti-cohabitation clause in the divorce agreement, the ex-husband moved to terminate alimony.

Second, the opinion reemphasizes the continuing critical importance of Lepis v. Lepis, 83 N.J. 139 (1980), the seminal case that continues to be the bedrock of New Jersey matrimonial jurisprudence.  In fact, it is no overstatement to suggest the Lepis decision, some 40 years later, remains the single most important precedent in New Jersey family law. Why? Because it authorizes (under the doctrine of “changed circumstances”)  the potential for setting aside or modifying post-divorce orders or agreements for (a) alimony or (b) child support (including post-high school educational expenses, such as those for college) and or even (c) non-financial issues such as parenting time and visitation. Thus, Lepis is the conduit through which the Landau parties litigated their various cohabitation issues. It forms the foundation of the court’s analysis which begins and ends with the application of Lepis.

Third, it is clear that cohabitation, as evidenced by Landau, is such a “changed circumstance” and its most recent reported appellate example.  Morevoer, this particular “changed circumstance” was deemed so crucial in New Jersey family law practice that it merited special attention in the major revisions to the New Jersey alimony statute enacted in 2014. Among the various statutory changes and revisions, the New Jersey legislature saw fit to update the definition of “cohabitation” by engrafting it in statutory form. Before then, “cohabitation” was defined and articulated through the well-known process of stare decisis and the peristalsis of the common law. Landau is thus significant because it is one of the first reported decisions expanding upon the legislative intent behind the 2014 statutory amendments.

Fourth, and on a practical level, the Landau opinion provides a road-map for navigating the risks, pitfalls, and costs of cohabitation litigation. In Landau, the ex-husband claimed his ex-wife and her alleged cohabitant traveled together, attended social activities together, posted photos and accounts on social media sites. He further contended that the man engaged in many activities with the Landau children, such as birthday dinners and others. The ex-wife countered that having a boyfriend does not necessarily equate with cohabitation and pointed out the absence of intertwined finances or shared expenses, as well as the absence of other indicia of cohabitation. The trial court ordered limited discovery, prior to a plenary hearing as to whether a prima facie case of cohabitation had been established. The ex-wife appealed these rulings and argued discovery was inappropriate, precisely because the ex-husband failed to meet his burden to establish a prima facie case of cohabitation.  Therefore, the Appellate Division reversed and held that discovery was not warranted, relying on the guiding principles established in Lepis.

In the last analysis, the reversal just ordered by the New Jersey Appellate Division in Landau may result in a negotiated settlement. Or there may be further litigation, possibly by way of further appeal to the New Jersey Supreme Court. Stay tuned.