Cohabitation – Don’t Misquote, Misapply or Misuse Landau v. Landau

Landau v. Landau does not address the merits of what is or is not cohabitation. Further, this case does not address whether the facts specific to it establish prima facia evidence of cohabitation.

Landau does stand for the proposition that a court must first find a prima facia showing of cohabitation before it can order discovery. This core principle of how we analyze cohabitation remains intact after the 2014 revisions to the alimony statute. The only question presented and answered in Landau was whether a prima facia showing is still needed before discovery is ordered.  In Landau, the judge did not decide whether a “prima facia” case was made.  And, on a reconsideration motion, he could not conclude if one was made at this stage of the case. Nonetheless, the court ordered discovery.

Do not misquote, misuse, misapply and distort Landau. It does not address, deal with, or opine as to whether cohabitation was taking place. Nor does it conclude if a prima facia case was even established. The court did not squarely address those merits.

Landau only stands to perpetuate the continued rule that to order discovery, the court first must recognize a prima facia showing. Likewise, the order must specifically state a prima facia finding.

As such, be sure your cohabitation application specifically requests that the court so find a prima facia showing. Also, be sure that they use the words “prima facia” in its written decision. Without such a showing, it is sufficient to defeat a cohabitation application and requests for discovery.

Please contact me if you have any questions about this blog post or other family law matters.

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