The New Jersey Supreme Court’s recent decision in Cardali v. Cardali is a clear win for divorce litigants seeking to terminate or suspend alimony payments. The decision provides significant clarity on what is needed to obtain discovery in a motion seeking to terminate or suspend alimony payments and set forth a new “two-step” process.
In 2006, the Cardalis entered into a Property Settlement Agreement that indicated alimony would be terminated upon “cohabitation as defined by New Jersey law.” The New Jersey court had previously defined cohabitation as a relationship “akin to marriage”—one that is serious and intended to be a long-term commitment that should absolve the alimony payor of continuing to financially support their former spouse. Fourteen years later, Mr. Cardali filed a motion seeking to terminate his alimony to Ms. Cardali based on her cohabitation. Mr. Cardali provided evidence in his motion before the trial court demonstrating the following facts:
- Cardali and her boyfriend had been in a relationship for eight years.
- Cardali and her boyfriend had attended family functions and other social events as a couple.
- Cardali and her boyfriend posted pictures together on social media.
- Cardali and her boyfriend vacationed together.
- A private investigator’s report stated that Ms. Cardali and her boyfriend, over the 44 days the investigator conducted surveillance, were together for some time on each of those days and were together overnight on more than half of those days.
- Again, observed through private investigation, Ms. Cardali’s boyfriend had access to her home whether she was home or not.
The trial court denied Mr. Cardali’s motion, noting that Mr. Cardali failed to provide any evidence that Ms. Cardali and her boyfriend’s finances were intertwined (one of New Jersey’s statutory factors for cohabitation). Thus, there could be no cohabitation. However, the Supreme Court specifically and soundly rejected that position.
The Supreme Court, at the request of Mr. Cardali and the New Jersey Chapter of the American Academy of Matrimonial Lawyers (members of which appeared in the case as a “friend of the court”), focused on what the burden of proof should be for a motion before a trial court when seeking the termination or suspension of alimony. The court affirmed the movant’s burden is a prima facie showing—a very minimal standard in which the litigant needs to provide “some evidence” that, if undisputed, would constitute cohabitation. The court unanimously held that a movant does not need to provide evidence on all of the cohabitation factors in the statute. Instead, if the movant provides competent evidence for some of the cohabitation factors, which, if unrebutted, would prove cohabitation, then the trial court should find the movant has made a prima facie showing of cohabitation and can proceed with discovery.
The court did not stop there. Concerned for an alimony recipient’s privacy rights, the court held that the discovery permitted upon a prima facie showing of cohabitation should be limited to “discrete issues” relating to one or more cohabitation factors in the case. Discovery should not be a “fishing expedition” into all areas of the alimony recipient’s life. This provides critical clarity and privacy protections to alimony recipients, as they do not need to open up every aspect of their lives to the court every time a movant alleges cohabitation.
Going even further, for matters like these, the court instituted a new step before plenary hearings can begin. The court held that at the end of discovery, each party must now submit a new certification setting forth all of the evidence obtained, or not, on the cohabitation factors. The trial court will then consider those certifications and determine if a hearing is still necessary to resolve the issue of cohabitation. The burden of proof remains on the payor to show that cohabitation is occurring, but this critical second step means there is the potential to avoid a costly hearing for both parties altogether if the evidence clearly establishes cohabitation.
In December of 2022, shortly before the court heard the Cardali case, prominent members of the family bar wrote about how courts were reaching widely inconsistent decisions on cohabitation and a movant’s burden in proving cohabitation. The court heeded those concerns and, in this thoughtful opinion, finally set forth clear guidance for litigants, judges, and attorneys on this issue. The issue of cohabitation is still fact-sensitive, so someone considering an application for cohabitation should gather all the facts they can and consult with counsel.
