Polow, J.J.D.R.C. (temporarily assigned).
The parties, as New Jersey residents, executed a separation agreement dated May 4, 1965, which was subsequently incorporated in a Nevada divorce decree entered for plaintiff on October 21, 1965. There is no question but that the terms of the agreement would require support for the plaintiff ex-wife in the sum of $85 per week if it is specifically enforceable unless a modification is legally and factually supportable.
Some time after the Nevada divorce, in or about July 1966, the parties were reunited in California and subsequently lived together in Morris Plains, New Jersey, without the benefit of marriage, until April 1969 when they
separated for good and plaintiff moved into her own apartment. The basic legal question to be decided at this time is whether such a resumption of cohabitation after a valid divorce decree terminates the future obligations contained in the separation agreement.
At a prior hearing in November 1971 defendant was held legally obligated to provide support for plaintiff without regard to the effect or enforceability of the separation agreement. An oral determination was made that the then existing circumstances justified a weekly alimony order in the amount of $50, which was in effect a reduction of $35 per week from the obligation contained in the agreement. It was at that time determined to be unnecessary to resolve the legal issue concerning whether the resumption of cohabitation abrogated the terms of the separation agreement since there was admittedly an obligation to provide some support, the divorce having been based on marital fault cognizable in New Jersey. Circumstances had changed in that defendant had remarried and plaintiff enjoyed increased income. If the same test for change of circumstances applies for modification of a written agreement as is required to modify a judgment for alimony, the agreement even though valid and enforceable would have been modifiable to the amount of the new determination based upon the then existing circumstances, and it was so resolved at that time. Shortly after that determination, however, the Appellate Division ruled that "[a] far greater showing of changed circumstances must be made before the court can modify a separation agreement than need be shown to warrant the court amending an order for alimony * * *." Schiff v. Schiff , 116 N.J. Super. 546, 561 (App. Div. 1971), cert. den. 60 N.J. 139 (1972).
Before the oral determination had been incorporated in a form of judgment, defendant sought and obtained an order for a new trial, despite the warning that the outcome might be less favorable to him in the light of the Schiff decision which had been reported in the interim. He was
advised, on the record, that the changes of circumstances, although sufficient to modify an order for alimony, might well fall short of the "far greater showing" required to modify a fairly and properly executed separation agreement. He nevertheless persisted and the matter was re-heard in March, 1972.
Upon the retrial testimony was taken from both parties. Defendant stated that when plaintiff moved into her own apartment in April 1969 she orally agreed to a reduction of alimony payments from the $85 per week provided by the agreement to $145 per month, the amount of her rent. Plaintiff denied any such modification. This court ruled that defendant had failed to sustain the burden of proof and found as a fact that there had been no oral modification. It was also determined at the conclusion of the hearing that there would be no retroactive support for the period during which the parties lived together following the divorce, and the question of current support was reserved pending submission of briefs.
Defendant argues that the resumption of cohabitation after the divorce was in fact a reconciliation which by law abrogates executory features of a separation agreement. The general rule with which this jurisdiction agrees is that a reconciliation or resumption of cohabitation before a divorce abrogates the executory provisions of a separation agreement. Wolff v. Wolff , 134 N.J. Eq. 8 (Ch. Div. 1943); Devine v. Devine , 89 N.J. Eq. 51 (Ch. Div. 1918); Restatement, Contracts , § 584(2); 35 A.L.R. 2d § 707.
The logic of this concept is compelling. Public policy favors preservation of the marriage. Terminating future obligations under a separation agreement upon reconciliation helps to restore the previous relationship of the parties, to recreate the status of the marriage before the separation.
Thus, normal cohabitation, as a matter of public policy will terminate any future obligation contained in a separation agreement. However, cohabitation after a divorce without the benefit of ...