The New Jersey Supreme Court’s recent opinion in Cardali v. Cardali is, in our view, right on the law and extremely helpful in providing specific procedures for how a litigant establishes a prima facie showing of cohabitation by an ex-spouse or ex-civil union partner in attempting to suspend or terminate alimony. The decision brings clarity to different views espoused by two different panels of the Appellate Division as to the requirements for a prima facie case. Cardali is also edifying as to the criteria set forth in the common law and in the amended alimony statute, N.J.S. A. 2A:34-23(n). Konzelman v. Konzelman, 159 N.J. 185, 202 (1999), identified factors which a court should consider in determining the existence of cohabitation and noted that cohabitation involves an intimate relationship where the couple has displayed indicia of duties and privileges commonly associated with marriage, including, but “not limited to, living together, intertwined finances, such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple’s social and family circle.” N.J.S.A. 2A:34-23(n), applicable to property settlement agreements executed after the statute’s enactment in 2014, adopted the Konzelman factors for suspension or termination of alimony.

Before matrimonial litigants and their counsel had the benefit of the Cardali decision, it was unclear what constituted a prima facie showing of cohabitation so that a moving party, suspecting his or her former spouse or civil union partner was cohabitating, would be able to obtain discovery. Without this discovery, which was usually financial in nature, a litigant was frustrated in his or her ability to establish a prima facie case. It was a veritable catch 22: the moving party could not establish a prima facie case because he or she did not have financial discovery, but could not get the discovery because he or she had not made a prima facie case.

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