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Applying the Amendments to the Alimony Statute as to Cohabitation to Post-Judgment Orders Filed Before the Statute's Effectuation Date

When the amendment to the alimony statute, N.J.S.A. 2A:34-23(n), relating to cohabitation was effectuated, a question arose as to whether the amendment applied to post-judgment Orders finalized before the effective date of the statute. In October 2015, the New Jersey Appellate Court addressed that very question in the case of Spangenberg v. Kolakowski, 442 N.J. Super. 529 (App. Div. 2015) and found that post-judgment Orders filed before the effective date of the statute are not subject to the amendments to the alimony statute.

The parties in Spangenberg were divorced in June 2012. Pursuant to the Martial Settlement Agreement, the parties agreed the Husband would pay the Wife alimony. The Wife further agreed to inform the Husband "when she [wa]s cohabitating with another," which the parties agreed would trigger an alimony review "consistent with the Gayet case and evolving case law." The parties also agreed to review the Husband's alimony obligation on June 7, 2014, based upon an acknowledged expectation that the Wife's income would increase by that time.

Prior to the June 7, 2014 review, the Husband moved to modify his alimony obligation, alleging that the Wife was cohabitating. The Wife admitted she moved into her boyfriend's residence on August 31, 2013. Following a review of the submissions and testimony of the parties, the trial Court entered an Order of December 18, 2013 finding that the Wife received an economic benefit from the cohabitation and therefore, reduced the alimony payable from the Husband to the Wife pursuant to an Order. On July 21, 2014, the Husband filed a Motion to modify or terminate alimony based upon the Martial Settlement Agreement's two year review provision, which the trial Court denied on September 18, 2014.

However, while the Husband's Motion of July 21, 2014 was pending, N.J.S.A. 2A:34-23 was amended on September 10, 2014 as to cohabitation to provide the following in relevant part:

n. Alimony may be suspended or terminated if the payee cohabits with another person. Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single household. (Emphasis added)

The statute also lists factors to be examined "when assessing whether cohabitation is occurring." N.J.S.A. 2A:34-23 (n)(1) to (7).

After the Husband's Motion was denied, he filed a Motion for Reconsideration which the trial Court denied. The Husband then appealed, arguing that the trial Court ignored the amendments to the alimony statute addressing cohabitation.

In upholding the finding of the trial Court, the Appellate Court confirmed that courts generally enforce newly-enacted statutes prospectively, unless the statute clearly expresses a different intent.

The amendments to N.J.S.A. 2A:34-23 themselves do not contain language specific as to implementation, except to provide the amendments are effective immediately, on September 10, 2014. However, the Appellate Court relied on the statute's language providing that it: "shall not be construed either to modify...specifically bargained for contractual provisions that have been (a) incorporated into a final judgment of divorce or dissolution; (b) a final order that has concluded post-judgment litigation; or (c) any enforceable written agreement between the parties.

Thus, as the trial Court made a final decision regarding the Husband's initial application seeking to reduce his alimony obligation based upon the Wife's cohabitation before the statutory amendments' effective date, the new cohabitation provision are not applicable to the parties in Spangenberg.

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