In a previous blog, I promised that the Appellant Division was going to revisit the proof required to be presented before one could obtain discovery of a dependent former spouse’s social and financial circumstances; as of today June 17th, 2021, the case has been decided although not yet approved for publication.
Temple v. Temple ( A-0293-20) is an important decision for anyone seeking to terminate their alimony obligations based on their former spouse’s cohabitation. In Landau v. Landau, the appellant court indicated that before one was entitled to discovery or a hearing, regarding issues of cohabitation the proponent of this change in circumstance needed to prove evidence of said change. The problem with Landau was that it did not address what proofs were needed in order to meet the requirement and move forward with the discovery phase.
The Trial Judge on Temple found that to be successful on an application one needed to prove all six factors set forth in the statute as things to evaluate when determining if a prima facia case was established. The Appellant Court accepted our argument that one needed not to prove all six statutory factors to establish a prima facia case but must only establish sufficient evidence so that the trier of fact may conclude that the parties have “ undertaken duties and privileges that are commonly associated with marriage or civil unions.”
The Appellant Court indicated that it was mindful that the legislature directed the courts to consider six factors when determining if cohabitation is occurring. These factors are specifically:
1) Intertwined finances, 2) shared responsibilities, 3) recognition of the couple’s relationship in other couples’ social and family circles. 4) Living together, the frequency and duration of the relationship and other indicia of a mutually supportive relationship, 5) shared household chores, 6) if there is a promise to support.
The appellant Division also pointed out that the statute contains a catch-all seventh factor
which is; any other relevant evidence. The Court established in this decision that not all the
factors needed to be present to prove a prima facia case and that on a motion without discovery it would be impossible for a movant to prove intertwined finances. Consistent without our brief, the Appellant Court indicated that the legislation in enacting the statute could not have intended to create an impossible burden. This case is also important as it makes it clear that defenses raised by the dependent former spouse are not to be considered at the motion phase and that all reasonable inferences were to be given to the applicant.
This decision should make cohabitation applications easier even if the case is not reported. The panel deciding the case were three exceptional Appellant Judges: Fisher, Gilson, and Gummer. Additionally, there is an offer of the court in Temple to revisit Landau if one looks to footnote no. 1 which states. “ For present purposes only, we assume Landau correctly held that a family
judge cannot compel discovery when only some of the indicia of cohabitation have been presented.” Meaning the Appellant Division is inviting appeals that would revisit Landau’s mandate that one must prove a prima facia case in order to obtain discovery when cohabitation is alleged. Temple offers a lot of avenues to explore when cohabitation is alleged. Our office
prides itself on our appellant work, Steele ( reported last month ) and Temple ( just decided )are just two examples of how “We Make The Law.”