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Who Has The Burden Of Proof In Cases For Modification Of Alimony Due To Cohabitation

There are two inquiries which must be made in order to determine whether cohabitation is a changed circumstance which will allow modification of alimony.  The first is whether the supported spouse and the cohabitant have a relatively permanent household which may be characterized as a family unit.  The second is whether the third party cohabitant contributes (1) to the dependent spouse’s support or (2) the third party resides in the dependent spouse’s home without  contributing anything towards the household expenses. 
   

Once the party filing the Motion for modification of alimony due to cohabitation gives the Court enough proof that a third party and the supported party are living together in a relatively permanent household as a family unit, the burden of proof shifts to the supported party (the receiver of alimony) to show that there is no economic interdependence between that party and the third party (cohabitant). 
   

In a recent case, the party who was paying alimony gave proof to the court that his ex-Wife was living with her boyfriend with whom she had had a relationship for many years.  He included a private investigator’s report showing that the third party stayed overnight at his ex-Wife’s home on many occasions, the third party had installed a business telephone, computer line and fax machine in the basement of the ex-Wife’s home.  He used a UPS mail box nearby as his only address in dealing with banks, utility companies, the motor vehicle commission and the Internal Revenue Service.  He used the laundry facilities at the ex-Wife’s address and had a closet in her home containing his belongings.  He also assisted with grocery shopping and dog walking and was present on holidays and birthdays throughout the years.
   

Proofs such as the above supplied by the paying spouse meets his burden of proof to show cohabitation.  The burden of proof would then shift to the supported spouse to show that there is no economic interdependence between her and her boyfriend.      

Full post as published by New Jersey Law Blog on February 25, 2009 (boomark / email).