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Appellate Division Addresses Retroactivity of New Alimony Statute Relating to Cohabitation

Previously we have written about the 2014 modifications to N.J.S.A. 2A:34-23 which dramatically changed the law in New Jersey as it relates to alimony. As outlined in that blog, the statute not only eliminated permanent alimony as a judicial option but clarified the law as it related to the impact of: cohabitation, retirement and loss of employment on alimony. The effective date of that statute is September 10, 2014. The bar has been awaiting cases dealing with the new alimony statute’s impact on new matters as well as how it would apply to matters resolved prior to its effective date.

In regard to matters decided prior to the effective date of the statutory changes, Judge Lihotz’s unpublished Appellate Division decision on October 14, 2015 in Spangenberg v. Kolakowski, —N.J.Super. — (App. Div. 2015) is informative.  In Spangenberg, the parties had been divorced in 2012, having entered into a Property Settlement Agreement appended to the Judgment of Divorce. Under the terms of that agreement the wife’s cohabitation with a male unrelated by blood or marriage could result in a modification of alimony based on evolving case law. In 2013 the husband sought to modify his alimony obligation based on his former wife’s admitted cohabitation. Based on the economic proofs, alimony was modified and his alimony obligation was reduced.

Under section (n) of the modified alimony statute, cohabitation, if proven, results in alimony being suspended or terminated not simply modified. Accordingly, after the effective date of the statute, the husband sought to have his wife’s cohabitation and its impact on his alimony obligation revisited along with allegations of other changes in circumstances. The Appellate Division, in reviewing the trial court’s decision denying relief to the former husband, found in part that the husband had no right to have his former wife’s cohabitation re-reviewed based on the newly revised statute. In this regard, Judge Lihotz opined that the order of 2013 modifying alimony was a final order that predated the alimony statute.  Although the statute itself had no specific clause indicating the intent of the Legislature regarding the retrospective application of the statute, the legislative history was informative. In the bill adopting the alimony amendments, there was the following determinative clarification of the statute:

“This act shall take effect immediately and shall not be construed                                 either to modify the duration of alimony ordered on agreed upon                                       or other specifically bargained for Contractual provisions . . .”.

Although the matter was remanded to the trial court for a plenary hearing regarding change in economic circumstances occurring since the Final Judgment of Divorce, the real significance of this decision is its clarification of the non-retrospective application of the new alimony statute based on the statute’s legislative history. Since the amendments to the alimony statute provide that alimony is to be terminated or suspended based on cohabitation, the refusal to apply the statute retroactively dramatically impacts the outcome of cases and would seem to bar the door to those who pre-statute proved their former spouse was cohabiting but were not afforded termination or suspension of their obligation.