On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock and O'Hern. For reversal and remandment -- Justice Schreiber. The opinion of the Court was delivered by O'Hern, J. Schreiber, J., dissenting.
[92 NJ Page 149] We are asked to determine whether cohabitation by a divorced spouse affects that spouse's existing alimony award. We agree
with the Appellate Division that the test for modification of alimony is whether the relationship has reduced the financial needs of the dependent former spouse. We therefore affirm that court's judgment reversing the trial court ruling that reduced and ultimately eliminated alimony in proportion to the amount of time the new parties lived together.
By judgment of divorce entered July 18, 1978, the defendant-husband was ordered to pay the plaintiff-wife $110 per week as alimony and $50 per week as support for their two children. The plaintiff received custody of the children, subject to off-premises visitation by the defendant, and was permitted to remain in the marital home until she remarried or the youngest child attained majority.
In March 1980, the defendant moved to terminate alimony and compel sale of the marital home, alleging that the plaintiff was cohabiting with another "as husband and wife." The parties stipulated that the plaintiff had cohabited four nights a week in the period between December 1, 1979 and March 15, 1980. Following discovery and a plenary hearing, the trial judge found that, in addition to the stipulated period, plaintiff had cohabited after March 15 approximately one night out of four in an interrupted period between April and July 29, 1980, the date of the hearing. He found that, as of the date of the hearing, "they [were] living together."
The trial court reduced the plaintiff's award retroactively by four-sevenths for the first period, by one-fourth for the second period, and terminated all alimony after July 29, 1980. On plaintiff's appeal, the Appellate Division reversed in an unreported opinion. We granted certification. 91 N.J. 194 (1982).
Alimony in New Jersey is primarily governed by statute. N.J.S.A. 2A:34-23 authorizes courts to award alimony pending any matrimonial action or after a judgment of divorce in an amount that "the circumstances of the parties and the nature of the case shall render fit, reasonable and just. . . ." In awarding alimony, the court must consider, among other factors, "the
actual need and ability to pay of the parties and the duration of the marriage." Id.
In Lepis v. Lepis, 83 N.J. 139 (1980), this Court held that an award of alimony, whether incorporated in a separation agreement or the terms of the divorce judgment, may be modified following a final judgment of divorce whenever changed circumstances substantially modify the economic conditions of the parties. Among the changed circumstances to be considered by trial courts, the Court specifically included "the dependent spouse's cohabitation with another. . . ." Id. at 151 (footnote omitted). The Court noted that alimony should decrease when circumstances render the original amount unnecessary to maintain the standard of living reflected in the original decree or agreement. Id. at 153. The task here is to determine whether circumstances have rendered a portion of the support received unnecessary.
Two policies of the law intersect in the resolution of this issue. First, the Legislature has directed that alimony shall terminate upon remarriage. N.J.S.A. 2A:34-25; see Sharpe v. Sharpe, 109 N.J. Super. 410 (Ch.Div.1970), mod., 57 N.J. 468 (1971). This signals a policy to end alimony when the supported spouse forms a new bond that eliminates the prior dependency as a matter of law. That policy, however, can conflict with another state policy that guarantees individual privacy, autonomy, and the right to develop personal relationships free from governmental sanctions. See State v. Saunders, 75 N.J. 200 (1977) (all members of the Court agree that there is a limited state interest in regulating an individual's personal decisions relating to privacy, which have merely incidental effects on others). See also Right to Choose v. Byrne, 91 N.J. 287 (1982). We must then consider how to balance these competing policies in these circumstances.
Prior to the adoption of New Jersey's 1971 Divorce Act, L. 1971, c. 212, a spouse seeking support had to prove fault on the part of the other and be free from fault lest the defense of ...