Living with Someone versus Cohabitation - is there a difference?

According to the Appellate Division, there is no difference between “living with someone” and “cohabitation”, despite one individual’s attempt to distinguish the two.

The facts are as follows: after a 20-year marriage, the parties divorced on July 11, 2013. Their Marital Settlement Agreement (hereinafter referred to as “Agreement”) required Defendant (hereinafter referred to as “Rob”) to pay alimony in the amount of $500 per week to Plaintiff (hereinafter referred to as “Susan”). The Agreement further provided that Rob’s alimony would increase to $700 per week when Susan was “forced to leave the marital home due to . . . foreclosure.” The MSA provided that alimony would terminate: [U]pon the death of either party, or the marriage or cohabitation of [plaintiff]. The term "cohabitation” in addition to its meaning as construed by New Jersey courts, shall also incorporate the scenario if [plaintiff] should take up residence with any family members (other than the children of the parties) or friends.

On October 22, 2015, Susan was forced out of the marital home, due to a Sherriff’s sale, and moved in with her sister. As a result of her cohabitation with her sister, Rob stopped paying alimony. Susan therefore filed a Notice of Motion to enforce litigant’s rights, seeking to compel Rob to continue paying alimony to her. Susan certified to the Court that she was paying her sister $800 per month to live with her, which increased her monthly expenses. According to Susan, she advised the Court that living with someone and cohabiting with someone are two different things; her understanding of “cohabitation” meant that someone else was supporting her or significantly contributing to her support, which was not the case.

The Court however rejected Susan’s argument and stated that while Susan may not have been cohabitating in the legal sense of the word as defined by case law, she was cohabitating for purposes of their Agreement. The Court noted that an Agreement between the parties was favored by the courts and was “essentially a contract, which was to be enforced as written, absent a demonstration of fraud or other compelling circumstances. And since Susan did not argue that she did not understand the terms of her Agreement or that there was some level of fraud, duress, or undue influence involved, she merely argued that her cohabitation is not cohabitation at all under the current case law. The Court concluded, however, that her cohabitation is considered cohabitation under the terms of her Agreement. And since the Court did not find any compelling reasons to depart from the clear, unambiguous and mutually understood terms of the Agreement, the Appellate Division confirmed the decision of the trial court.

Accordingly, next time you are negotiating your Agreement, consider future consequences. Be careful to what you agree to and consider all possible outcomes. You must look at the big picture and consider every single “what-if”.

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