Cohabitation and why trial courts should follow the Temple decision

The Temple Decision and How It Changes Alimony Modification


Divorce attorneys were encouraged in 2014 when the State of New Jersey overhauled its alimony laws and included cohabitation into the statute. However, as came to the forefront with the Landau v. Landau decision in 2019, confusion regarding cohabitation continued. The Temple v. Temple decision in 2021 solved these problems and provides explicit language that eliminates the impossible burden that an alimony payor often faces when attempting to decrease, suspend or even terminate alimony.


Alimony in New Jersey


Alimony is a court-ordered obligation in which an ex-spouse continues to financially support their former spouse with a specified monetary amount and for a specified time frame. In the Temple case, the alimony was permanent. Divorce lawyers note that permanent alimony was replaced in 2014 and is now open durational alimony, which is generally reserved for marriages of 20 years or longer. The alimony period can be no longer than the marriage length absent exceptional circumstances and can be shorter depending on the facts and circumstances of the case.


Alimony laws in New Jersey are gender neutral, and thus gender plays no role in the more than a dozen factors a court uses to determine if it should award support. Whether support is temporary or permanent, the courts can modify it, including termination. Courts often update the financial parameters of alimony orders in the case of income changes, and they will terminate an order when the supported spouse remarries or is in an intimate personal relationship that meets the criteria of cohabitation.


Cohabitation Criteria


Courts and family lawyers often refer to mutually supportive, intimate and personal relationships as cohabitation. A common issue that the courts recognize is that some former spouses delay marriage or forgo it altogether in order to continue receiving alimony payments. Cohabitation is the same as marriage for the purposes of alimony modification, suspension or termination, and there is established criteria that the court uses to determine whether a relationship is cohabitation. . The criteria for the court to assess are:


  • Intertwined finances
  • Sharing living expenses
  • Sharing household chores
  • Recognition of the relationship within social circles
  • Living together and other indicia of a mutually supportive Intimate Personal Relationship
  • An enforceable promise of support from another person
  • All other evidence that the court deems relevant


Proving Cohabitation at the Initial Motion Stage


Family law attorneys advise that the burden is on the alimony payor requesting the change to alimony to provide the initial evidence of cohabitation. What has been established in various cases and the Landau case in particular is that the person requesting change must establish a prima facie case for cohabitation. The Landau case further enforced the requirement that this case must be made before being allowed to obtain discovery.



Discovery is a formal process in which the two parties involved exchange information in a legally obligated manner. In a divorce trial, this is the phase during which the divorce attorney for each spouse provides their evidence to the other. As for alimony modification, this is the period during which the person seeking the modification can request financial details and other information that they can use to prove that the cohabitation is occurring.




What existed prior to the Temple case is what many divorce lawyers have referred to as an impossible burden due to the misinterpretation of the Landau decision. The person requesting the modification was required to make a prima facie case before discovery. The issue here is that such a case is all but impossible to make without access to the information that discovery allows. The court understandably wants to avoid a fishing expedition, and this is the challenged faced. How do you allow for the evidence a payor spouse needs while protecting the privacy of the supported spouse?


The Temple Case


In the Temple case, the court awarded the wife permanent alimony after an 18-year marriage, and the amount was more than $5,000 a month. Sixteen years later, the husband sought termination of his alimony obligation due to his assertion that his ex-wife was cohabitating and had been for 14 years. The husband provided a range of evidence without the benefit of discovery, but the court ruled that the case presented did not address all six of the factors that we listed earlier.


The husband’s family lawyer appealed the case. The Appellate Division reversed the trial court’s ruling, and it remanded the case to provide the husband an opportunity for discovery and an evidentiary hearing. The reasoning behind the reversal is that higher court deemed that it would be impossible to demonstrate intertwined finances and similar details without the benefit of discovery.


The Case Published


Most case law is not published. Typically, the appellate court will choose to publish a ruling if it believes it will serve as future precedent. The appellate court in this case did not originally make that decision. However, the Committee on Publications received many requests from prominent lawyers throughout the state in addition to a formal request from the New Jersey Chapter of the American Academy of Matrimonial Lawyers. The Committee agreed, and Temple v. Temple was later published.


The Ruling


Published case law is what practitioners use to interpret the law. From that perspective, the Temple decision is significant and makes very clear the burdens at the initial motion stage and at the first hearing. It is also important to note that the ruling clarifies how trial courts should approach cohabitation and more explicitly defines the circumstances under which the courts should allow or deny discovery.


With the ruling, the appellate court also spoke directly to family judges. It encouraged them in being careful to avoid fishing expeditions but to be cognizant of the fact that most information relevant to the cohabitation is not readily available to the person seeking the modification.


The Road Ahead


It is too soon to say whether real change has occurred, but it does seem likely because due to this ruling the law will be more clear.


Modifying Court-Ordered Alimony


If you pay alimony and would like to change a court order because your former spouse is in a relationship tantamount to marriage, Lawrence Law would like to help. Founded by Jeralyn Lawrence, our New Jersey law firm has handled many cases involving alimony modifications. We have offices in Watchung in Somerset County and in Red Bank in Monmouth County, and you can schedule a case evaluation with a family law attorney by calling us at 908-645-1000 or completing the contact form on our website.

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