A Win for Divorce Litigants: NJ Supreme Court Cardali Decision Provides Clarity on Cohabitation | Cohen-Ciglias-Pallas-Greenhall and Foreman BC


The latest decision by the New Jersey Supreme Court regarding Kardali vs. Kardali This is a clear win for litigants seeking to terminate or suspend alimony payments. The decision provides significant clarity on what is required to obtain discovery in a motion that seeks to terminate or suspend alimony payments and establish a new “two-step” process.

In 2006, the Cardalis family entered into an estate settlement agreement indicating that alimony would be terminated upon “cohabitation as defined by New Jersey law”. A New Jersey court had previously defined cohabitation as a “marriage-like” relationship—one that was serious and intended to be a long-term commitment that would excuse the alimony payer from continuing to financially support his ex-wife. Fourteen years later, Mr. Cardali applied for the termination of his maintenance to Mrs. Cardali on the basis of her cohabitation. In his application to the Court of First Instance, Mr. Cardali presented evidence proving the following facts:

  1. Cardali and her boyfriend have been in a relationship for eight years.
  2. Cardali and her boyfriend attended family functions and other social events as a couple.
  3. Cardali and her boyfriend posted pictures together on social media.
  4. Cardali and her boyfriend vacationed together.
  5. A private investigator’s report stated that, over the 44 days that the investigator conducted the surveillance, Ms. Cardali and her boyfriend were together for some time on each of those days and were together overnight on more than half of those days.
  6. And again, as noted by a private investigation, Mrs. Cardali’s friend was able to gain access to her house whether she was at home or not.

The trial court denied Mr. Cardali’s application, noting that Mr. Cardali failed to provide any evidence that Mrs. Cardali and her boyfriend’s financial affairs were intertwined (a factor in the legality of cohabitation in New Jersey). Thus, there can be no coexistence. However, the Supreme Court has specifically and properly rejected this position.

The Supreme Court, at the request of Mr. Cardalley and the New Jersey chapter of the American Academy of Matrimonial Lawyers (whose members appeared in the case as “friends of the court”), focused on the burden of proof that a lower court petition should have when seeking termination or suspension of alimony. The court confirmed that the burden of transportation is a At first glance Presentation – a very low standard whereby the litigant needs to provide “certain evidence” which, if indisputable, would constitute a cohabitation. The court unanimously decided that the mover did not need to provide evidence of it everyone Of cohabitation factors in the law. Alternatively, if the mover presents competent evidence of some factor of cohabitation, which, if not disproved, would establish cohabitation, the court of first instance must find that the mover has presented At first glance Show cohabitation and discovery can proceed.

The court did not stop there. Concerned about the privacy rights of the alimony recipients, the court held discovery admissible when A At first glance The offer of cohabitation must be limited to ‘discrete cases’ relating to one or more cohabitation factors in the case. Discovery should not be a “fishing trip” in all areas of the alimony recipient’s life. This provides monetary clarity and privacy protection for alimony recipients, as they do not need to open every aspect of their lives to the court every time a married person claims cohabitation.

And to go further, for matters like this, the court took a new step before the start of the plenary sessions. The court held that, at the end of discovery, each party must now submit a new certificate stating all evidence obtained, or not obtained, of the factors of cohabitation. The court will then consider those testimonies and determine whether a hearing is still necessary to resolve the issue of cohabitation. The burden of proof remains with the payer to establish cohabitation, but this crucial second step means that there is a possibility of avoiding a costly hearing for both parties altogether if the evidence clearly establishes cohabitation.

In December of 2022, shortly before the Court heard Cardali’s case, prominent members of the family bar association attended wrote about How have courts reached widely inconsistent decisions about cohabitation and the burden of proving cohabitation? The Court has responded to these concerns and, in this considered opinion, has finally established clear guidance for litigants, judges, and attorneys on this issue. The issue of cohabitation is still fact-sensitive, so a person considering a cohabitation request should gather all the facts they can and consult with an attorney.


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