Few subjects in family law have engendered more debate, appeals, articles and lectures over the past nine years than “cohabitation.” See Matheu D. Nunn, Jeralyn Lawrence, et. al., “‘Temple’ of Doom: The Prima Facie Showing of Cohabitation Remains a Mystery,“ (December 15, 2022); see also John P. Paone Jr. and Cassie Murphy, “Cohabitation Under NJ Law: A Special Relationship“ (June 30, 2021); Matheu D. Nunn and Kristi Terranova, “Cohabitation Frustration: A Primer on Prima Facie,” 227 N.J.L.J. 145 (January 18, 2021). In fact, there have been more than 60 appeals on that subject since 2014, see Barry S. Sobel, “Survey of Post-2014 Amendment New Jersey Cohabitation Cases,” 41 N.J. Fam. L. 2 (2023), including the Supreme Court’s Aug. 8, 2023 decision in Cardali v. Cardali, ___ N.J. ___ (2023). The vast majority of these cases hinged on whether a movant or alimony-payor presented sufficient proofs at the motion stage to obtain discovery and a hearing. See, e.g., Temple v. Temple, 468 N.J. Super. 364 (App. Div. 2021). As the years unfolded—and even after the decision in Temple—it became clearer that the burden on a movant remained, well, unclear. Fortunately, the New Jersey Supreme Court has now provided guidance on how trial courts must approach cohabitation motions. 

By way of brief background, 40 years ago the Supreme Court decided Gayet v. Gayet, 92 N.J. 149, 153 (1983), which allowed modification of alimony based on cohabitation that had an economic impact. Thereafter, the court decided Konzelman v. Konzelman, 158 N.J. 185, 202 (1999). It held “[c]ohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These can include, but are 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.” Id. at 202. Later, in Quinn v. Quinn, 225 N.J. 34, 49-50 (2016), the court held that once alimony is terminated under Konzelman, it may not be reinstated. Notably, in dissent, Justice Barry T. Albin wrote: “Anti-cohabitation clauses under Konzelman permit the forfeiture of the right to alimony even if the cohabiting ex-spouse receives no financial support from the person with whom she resides.” Id. at 60.