Easing the Standard for a Prima Face Case in Cohabitation Cases: A Closer Look at New Case Law Cardali v. Cardali

In a continued trend to make the prima facie showing of cohabitation easier, the New Jersey Supreme Court held in its recent August 2023 decision in Cardali v. Cardali that the moving party does not need to present evidence on all of the cohabitation factors set forth in Konzelman v Konzelman 158 N.J. 185 (1999) in order to be granted limited discovery. This includes not requiring the moving party to show intertwined finances. This is in keeping with the trend in cohabitation law set by the 2021 decision in Temple v Temple.

Cardali v. Cardali  : A Glimpse into the Case

In Cardali, the moving party John Cardali, a divorced man paying alimony to his ex-wife, Maria Cardali, petitioned the court to terminate his alimony payments on the grounds that Ms. Cardali is cohabitating with her new partner, Mark Anderson.

In Cardali, while the moving party showed indicia of cohabitation, he was unable to show evidence of any financial relationship between Ms. Cardali and Mr. Anderson. The Supreme Court noted at the outset that they did not view either the case law or the statute to “… require evidence of a financial relationship between the spouse or civil union partner receiving alimony and the other person as a prerequisite to discovery; as  a practical matter, such a showing may be impossible without discovery” (Emphasis added). This is a development of the holding in Temple that was not specifically addressed.

The Supreme Court ruled that as a policy, “…the mandate that a movant present a prima facie showing in order to obtain discovery is not intended to impose a high bar.” (Emphasis added). In fact, the Court reiterated the definition of prima facia as “evidence that, if unrebutted, would sustain a judgment in the proponent’s favor.” In fact, the Supreme Court in Cardali, noted as in prior cases, that the ability to show all facts, particularly intertwined finances, is not necessary, and in most cases, not possible. The Court held:

Indeed, any such requirement would impose an unfair burden on a movant at the preliminary stage. Absent discovery, a movant is unlikely to have access to the financial records and other documents relevant to Konzelman’s financial factors — “intertwined finances such as joint bank accounts” and “sharing living expenses” — or their statutory counterparts, N.J.S.A. 2A:34-23(n)(1) and (n)(2).

 Once a prima facie case is made and discovery is ordered, it is not meant to be a open ended fishing expedition. Rather, the Court held that:

In fashioning its discovery order, the trial court should take appropriate steps to safeguard the privacy of the spouse or civil union partner receiving alimony and the individual with whom that person is alleged to be cohabiting. Those steps may include, but are not limited to limited to, constraints on the discovery to be provided to the movant and protective orders limiting access to the information subject to discovery.

 The Court then noted that after this limited discovery, the procedure would be for the parties to submit supplemental certifications and if material facts remain in dispute, a plenary hearing should be conducted.

For help with your cohabitation case or your family law or divorce issues contact Georgia Fraser, Esq. at Fraser Family Law Office, LLC. 609-223-2099.

New Cohabitation Case Law- The Standard for Proving Cohabitation to Terminate or Modify Alimony Just Became Easier.

On June 30, 2021 the New Jersey Appellate Court case, Temple v Temple, was approved for publication, making it binding case law in New Jersey.  How does this case now make it easier to prove cohabitation- well let me explain.

Alimony or spousal support in New Jersey may be suspended or terminated if the payee cohabits with another person. N.J.S.A. 2A:34-23. This required the Court to consider six (6) non-exclusive statutory factors, which include intertwined finances, sharing of living expenses, recognition of the relationship, duration of the relationship, sharing of household chores and other relevant evidence. Prior case law had put a significant burden on the paying spouse to prove cohabitation prior to being permitted discovery toward these six statutory factors.

The facts in Temple are not uncommon in cohabitation disputes. A husband and wife divorced after a lengthy marriage with an agreement in which the husband was to pay permanent alimony to wife. Sixteen years later, the husband filed an application with the court to terminate his alimony obligation, alleging the wife had either remarried or was cohabitating with a man whom she had been in a long-term relationship post-divorce.

The wife filed a written response with her own alleged explanations as to her relationship with the gentleman, and alleged she was neither remarried nor cohabitating with him as defined by statute. The trial judge, incorrectly, accepted the wife’s written explanation as true and denied the husband’s application. In doing so, the husband was prevented from conducting discovery and obtaining disclosure of information and/or documentation which may have provided him with further evidence of the wife’s cohabitation.

The husband filed a successful appeal, and the Appellate Division reversed the trial court’s denial and remanded the case to allow husband the opportunity to seek discovery and an evidentiary hearing. In doing so, the Temple court clarified how trial courts need to approach allegations of cohabitation and under what circumstances discovery will be allowed.

While prior case law had given the impression that trial courts should only allow discovery if a high burden of proof was initially satisfied and substantial evidence was independently obtained by the alimony payor, Temple now appears to have lowered that bar substantially.

The decision in Temple is significant, and likely will allow many more alimony payors to succeed in obtaining rights to discovery from their ex-spouse to obtain evidence they would have otherwise been prevented from obtaining to rightfully prove their case and have their alimony properly reduced, suspended or terminated.

Success in cohabitation litigation largely depends on the proper timing of your filing as well as the investigation and precise presentation and application of the facts in your matter to applicable law. 

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Contact Georgia Fraser, Esq. at Fraser Family Law Office LLC for help with your family law or divorce issue. 609-223-2099.

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