On August 8, 2023, the New Jersey Supreme Court issued a unanimous opinion in the matter of Cardali v. Cardali, largely resolving an ongoing debate among New Jersey courts about what is necessary for a litigant to make a “prima facie,” or threshold demonstration of cohabitation. For those paying alimony, proving cohabitation by the recipient would permit a Court to either suspend or terminate alimony. Cohabitation itself is defined as a mutually supportive, intimate personal relationship, in which the parties have undertaken duties and privileges that are commonly associated with marriage or civil union.
Proving cohabitation can be very difficult, however, and our Courts have recognized that recipients of alimony may make great efforts to hide their personal and financial involvement with a new partner. Accordingly, our Courts have allowed litigants who make a “prima facie” showing, of cohabitation to engage in discovery and gather additional information as to whether the recipient of alimony is indeed cohabiting. Notwithstanding, if a litigant successfully made a “prima facie” demonstration of cohabitation, the burden would then shift to the recipient of alimony to disprove cohabitation.
Our Courts have been greatly divided, however, on what constitutes a “prima facie” demonstration of cohabitation. Some Courts have required significant evidence of financial intertwining – shared bank accounts, property held jointly, vacationing together – before finding “prima facie” cohabitation and allowing discovery. Other Courts have recognized it is very unlikely a litigant would be able to come to Court with that proof already in hand, and have found “prima facie” cohabitation based on social media posts, anecdotal evidence, or private investigator report. Appellate Division decisions have varied and even conflicted. Trial level decisions have run the gamut, making predictability of outcomes all but impossible.
The Cardali opinion has now made substantial strides in resolving the conflicting decisions. In Cardali, our Supreme Court instructs our appellate and trial courts that
“… a movant need not present evidence on all of the cohabitation factors in order to make a prima facie showing. If the movant’s certification addresses some of the relevant factors and is supported by competent evidence, and if that evidence would warrant a finding of cohabitation if unrebutted, the trial court should find that the movant has presented prima facie evidence of cohabitation.”
The Cardali Court took a step further, and gave instructions to our lower courts that the requirement of a “prima facie” demonstration “… is not intended to impose a high bar.” Moreover, “[t]he movant’s burden at the preliminary stage is not an onerous one.” Arguably, the Cardali decision has made things much easier for payors of alimony to file motions to terminate their obligation based on the cohabitation of the recipient.
However, the Cardali Court reversed the burden-shifting that was to occur once “prima facie” cohabitation had been demonstrated. Post-Cardali, the burden to prove cohabitation, as a final determination, rests with the movant “at all stages of the proceeding.” As the Cardali Court reasoned, the burden shifting in previous cases made sense because the payor “lacked access to evidence relevant to cohabitation.” As trial courts would now be required to order limited discovery, then further statements and proceedings once discovery is exchanged, maintaining the burden of proof with the alimony payor was appropriate.
In this way, our Supreme Court has given alimony payors a greater opportunity to obtain the information necessary to demonstrate cohabitation, and suspend or terminate their alimony obligation. However, our Supreme Court has also taken away the burden-shifting to the alimony recipient to disprove cohabitation, once a threshold showing was made. While the Cardali decision may significantly increase the number of Court applications based on alleged cohabitation, it remains to be seen if there will be a significant increase in suspensions or terminations of alimony.
