Alimony is often a bitter pill to swallow. The payor may feel as though they are paying too much for too long. The recipient may feel it’s not enough. But once alimony has been set, what happens when circumstances change in the future and how should potential changes be handled in the drafting of your settlement agreement?
One possible change would be that the recipient begins cohabitating (this post will not address the definition or criteria that define cohabitation under NJ divorce law). Under the current law, cohabitation by party receiving alimony may provide a basis for a modification or termination of the alimony obligation. So if you are receiving alimony and considering living with someone, you have been warned! This principle was addressed in the recent decision of Kafader, f/k/a Navas v. Navas (http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a2184-16.pdf In this decision the court reasoned that:
“In our view, the court here erred by inferring the parties agreed cohabitation would not constitute grounds supporting a modification or termination of alimony. The PSA’s language did not compel such an inference. The PSA’s silence on the issue of cohabitation may have constituted a recognition that in the absence of an express agreement, the law permits a supporting spouse to rely on cohabitation as a changed circumstance supporting the termination or modification of alimony. Ibid. We conclude the court erred by determining the parties agreed plaintiff’s cohabitation would terminate alimony …”
In confirming the current state of the law the court also touched on the issue of drafting a settlement agreement. What happens when a topic is omitted? Here, the court did not view that the failure to address cohabitation served as a waiver of the right to seek modification or termination as that right is already embodied in the law. The court seems to suggest that adding such language may be an unnecessary redundancy. I don’t disagree.
That being said, I favor erring on the side of caution even if doing so results in repetition or stating the obvious. Doing so allows everyone to have a clear understanding of their rights and obligations. Actions have consequences and it is better to be aware of them before hand. At The Durst Firm we take the time to explain the law to our clients, draft Agreements that clearly express the agreements the parties have reached, and in doing so, provide guidance that can help minimize future conflicts.