Konzelman v. Konzelman – Divorce – Cohabitation Clauses
Konzelman v. Konzelman, 158 N.J. 185, 729 A.2d 7 (N.J. 1999).
NATURE OF THE CASE: This case involved a dispute regarding the termination of support payments conditioned upon W’s cohabitation with another male.
FACTS: The Konzelman’s final divorce decree was entered in 1991 after 27 years of marriage. The decree included a property settlement agreement whereby H would pay support and maintenance of $700 per week with the condition that the support and maintenance would terminate should W cohabit with an unrelated male for a period of four continuous months.
H hired a private investigator to verify that W was cohabiting with someone else. The surveillance was conducted seven days per week for 127 days. The private investigator reported on the activities of an unrelated adult male at W’s home. The man went to work each morning and returned every evening and parked his car in the garage. He did yard work and picked up the evening paper every night and answered the door to the home.
H terminated alimony payments and W filed a motion denying cohabitation and demanding arrearages. The trial court ordered H to pay support arrears and resume payments until a plenary hearing could be held. The hearing was conducted over 13 days and demonstrated that W was cohabitating with another male. The trial court however held the provision terminating alimony was invalid and unenforceable. The trial court also determined that W was receiving $170 per week from unidentified sources and therefore reduced H’s support obligation by that amount. H and W appealed and the appeals court found that the agreement was valid and reversed the lower court and terminated the alimony. W appealed.
ISSUE: May a property settlement agreement provide for termination of alimony if a spouse cohabitates with another for a period longer than four months?
RULE OF LAW: Yes. A property settlement agreement can be enforceable if it provides for the termination of alimony payments in the event that a spouse cohabitates with another for a period longer than four months.
HOLDING AND DECISION: Provided that certain minimum standards are met to ensure mutuality, voluntariness, and fairness, cohabitation agreements may be enforced. Cohabitation agreements must be voluntary and consensual and there must be assurances that they are fully informed, knowingly assumed and fair and equitable.
Privacy concerns may be addressed and mitigated by judicial supervision over agreements. The court does not abrogate its responsibility to assure fairness in the implementation of such agreements. A mere romantic or casual or social relationship is not sufficient to justify the enforcement of such an agreement.
The standard of enforcement must be defined by cohabitation as a domestic relationship whereby two unmarried adults live as husband and wife. Indicia of such a relationship are intertwined finances, shared living expenses and household chores and recognition of the relationship in the couple’s social and family circle. Under these facts, both the trial court and the appeals court found cohabitation and these findings are supported by substantial evidence. The cohabitation was continuing and for a long duration. The agreement between H and W was voluntary, knowing and consensual and both parties were represented by counsel. There were no allegations of fraud or overreaching or inequity.
DISPOSITION: Affirmed
DISSENT: The private lives of divorced women are not the business of the law. The economic needs of divorced women are the business of the law. What is appropriate is an economic needs test to determine if cohabitation requires modification of an alimony award. This is followed by the majority of jurisdictions. By abandoning this test the court has equated cohabitation with marriage. We do not have an anti-cohabitation statute. Further, this trial took thirteen days over three months and included 26 witnesses just to determine that H had evidence from 127 days of surveillance to show that W had got $170 a week by merely living with someone else.
NOTES: This case is the origin of the term “Konzelman clause”.