Case Notes

The hearing officer in the family court proceeding found that the parties had had extramarital sex with others before and during the marriage, and that this pattern continued after Aug. 23, 2013 (the date the wife was ordered out of the marital home). Thus, sexual relations between the parties post-separation could not serve as evidence that the parties intended to reconcile, as the wife had argued. The hearing officer therefore determined the date of separation for the purposes of ' 3301(d)'s two-year separate habitation requirement was Aug. 23, 2013.

On appeal, the court found error only in the date-of-separation designation, determining that the intent to separate occurred in October 2013, when the husband wrote to his wife to tell her he would file for divorce, not in August 2013.

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Terms of Settlement Agreement Enforced

In a case involving alimony and a provision terminating it upon the recipient's cohabitation, New Jersey's highest court has found that it was error for the trial and lower appellate courts to have reinstated alimony after the ex-wife stopped cohabiting with her boyfriend because the settlement agreement called for cessation of alimony upon her cohabiting with another man. Quinn v. Quinn, No. A-5-14 (5/3/16).

In the property settlement accompanying their divorce, the former spouses in Quinn had agreed that the wife would receive alimony payments of more than $5,000 per month, but that those payments would terminate upon her remarriage or cohabitation with another, or upon either party's death. The divorce was finalized in 2006. The wife met another man in August 2007 and the husband asserted that she had moved in with this man in January 2008. The husband then moved the court to terminate his alimony obligation.

Trial on the issue stretched for 11 months, during which the court determined, over the wife's objections, that the wife had cohabited with another man from January 2008 until April 2010. However, by the time the trial came to its close, the wife and her boyfriend were no longer living together. Because the cohabitation ended during the trial, the court merely suspended the husband's duty to pay alimony for the period of January 2008 to April 2010, but reinstated his obligation from that point forward. New Jersey's Appellate Division affirmed, noting that although the trial court had altered the terms of the settlement agreement, it was a court of equity and had the power to do so when circumstances warranted.

On appeal, New Jersey's Supreme Court reversed. The court noted that alimony is considered a matter of right in many cases in that state, but that divorcing parties are entitled to negotiate different financial settlement terms if they so choose. Here, both parties were represented by counsel, they chose to agree to different terms than those generally imposed by the courts of New Jersey, and the wife did not allege coercion, overreaching or other improprieties. As such, the high court saw no justification for the trial court or the intermediate appellate court to rewrite the parties' agreement.

Two of the justices dissented. In his written dissent, Justice Barry T. Albin pointed out that New Jersey's legislature codified the automatic cessation of alimony obligations upon a recipient's remarriage (New Jersey Statutes Annotated (N.J.S.A.) 2A:34-25), yet recently clarified that the cancellation of an alimony obligation due to cohabitation was merely permitted but not required (N.J.S.A. 2A:34-23n). Judge Albin noted that the parties had been married for 22 years at the time of divorce, they had two children still living at home, the wife's income was 1/10th of her husband's ' and New Jersey's alimony laws are meant to allow an ex-spouse to maintain something as close to the marital economic condition as is possible. He agreed with the majority that settlement agreements are contracts and generally are to be enforced by the courts, but noted that contracts that run counter to New Jersey public policy remain unenforceable. “It is clear that the right to contract does not reign supreme in family matters and that the greater good must prevail over the schemes and designs of a party or parties when a contractual provision offends public policy,” wrote Justice Albin. “The family court, in particular, is invested with equitable powers to ensure that individual rights are not trampled by oppressive contractual clauses that serve no legitimate purpose.” One such right is the pursuit of happiness, he said, which is guaranteed by Article I of New Jersey's Constitution. Judge Albin would have voided the settlement agreement's cohabitation alimony-canceling provision because it “empowers an ex-husband to compel his former wife to choose between continuing a loving relationship and maintaining her earned right to alimony, even when her new relationship has not changed her economic circumstances.” Such control (which the wife could not exercise to keep her ex-husband from maintaining a new relationship) hampered the wife in Quinn's ability to pursue happiness, concluded Judge Albin, so the co-habitation clause went counter to Article I's constitutional guarantee, was thus against New Jersey's public policy, and should not have been enforced even if it was enshrined in a contract.

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