Our CFL course teaches you about the subtle, easy-to-overlook aspects of alimony agreements. Sometimes, like in the New Jersey appeals court case of Landau v. Landau, the issue of cohabitation comes up and leads to conflicts. The ruling resolved the dilemma of whether a prima facie showing of cohabitation is required to change, suspend, or end alimony.
David Scott Landau and Stacy Landau divorced in 2014 after nearly 11 years of marriage and three children. According to the marital settlement agreement in their final divorce judgment, Stacy would get limited duration term alimony.
The ex-husband agreed to pay Stacy $44,000 per month until September 2017, and $40,000 monthly ending in March 2022. Both agreed that alimony would end on the death of either party, Stacy’s remarriage, or March 31, 2022, whichever happens first.
Further, the agreement provided that “[n]otwithstanding anything contained herein to the contrary, the Wife’s cohabitation as defined by then current statutory and case law shall be a basis for the Husband to file an application seeking a review and potential modification, suspension or termination of alimony pursuant to New Jersey law.”
In December 2017, Mr. Landau motioned on the cohabitation clause. He alleged that his ex-wife had been seeing another man exclusively for over a year. David asserted, among other claims, that the two had traveled together, slept regularly at each other’s homes, and that the man attended important family events. He also claimed that Stacy publicly acknowledged the man and their relationship in a Bar Mitzvah speech and that she moved her brokerage accounts to the firm where the man works to get a “friends and family discount.”
Stacy admitted she had a boyfriend, but that didn’t mean she was cohabiting. Among her defenses, she denied being in a relationship tantamount to marriage; the two had “never discussed [their] ‘future’ with respect to merging [their] lives.” They were simply dating regularly without any obligations to each other.
In reaching its verdict, the trial court looked to 2014 alimony law changes and to the precedential 1980 case of Lepis v. Lepis. It decided a prima facie showing of changed circumstances is required before a court will order discovery to alter custody or support. In other words, there must be enough evidence to presume or establish fact unless proven otherwise.
The judge acknowledged the “’general task for the judge hearing the [cohabitation] motion is to determine whether the moving party has established a prima facie case of cohabitation,’ meaning that plaintiff’s ‘proffered evidence, if…unrebutted would…sustain a judgment’ in his favor, the judge ‘decided that [he was] not going to decide whether…plaintiff has made out a prima facie case, but [he was] going to allow discovery…to allow…plaintiff the opportunity to make a showing of a prima facie case, or not, as the case may be.’”
As a result, David could make a broad discovery request for “a prima facie showing” of cohabitation, which led Stacy to appeal.
Superior Court of New Jersey, Appellate Division Decision
The appeals court believed “There is no question but that a prima facie showing of cohabitation can be difficult to establish, see Konzelman, 158 N.J. at 191-92 (describing the seven days a week, 127 days of surveillance of Mrs. Konzelman’s residence), precisely for the reason the trial court identified, that the readily available evidence is often ‘consistent with either a dating relationship or a cohabitation relationship.’ But that is hardly a new problem and it cannot justify the invasion of defendant’s privacy represented by the order entered here. We are confident the Lepis paradigm requiring the party seeking modification to establish ‘[a] prima facie showing of changed circumstances…before a court will order discovery of an ex-spouse’s financial status,’ 83 N.J. at 157, continues to strike a fair and workable balance between the parties’ competing interests, which was not altered by the 2014 amendments to the alimony statute.
Because the trial court judge found David hadn’t established a prima facie case of the changed circumstance of defendant’s cohabitation, he “was plainly not entitled to discovery under Lepis. See ibid.”
The appeals court found nothing in the 2014 amendments to the alimony statute altered “the procedures that a court should employ when passing upon a modification petition — particularly the allocation of the burdens of proof and the conditions for compelling production of tax returns,” per Lepis. It reversed the discovery order.
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