Permits modification of alimony award based on cohabitation of supported spouse.

A1576

ASSEMBLY, No. 1576

STATE OF NEW JERSEY

222nd LEGISLATURE

�

PRE-FILED FOR INTRODUCTION IN THE 2026 SESSION

Sponsored by:

Assemblyman SEAN T. KEAN

District 30 (Monmouth and Ocean)

SYNOPSIS

���� Permits modification of alimony award based on
cohabitation of supported spouse.

CURRENT VERSION OF TEXT

���� Introduced Pending Technical Review by Legislative
Counsel.

��

An Act

concerning alimony and amending N.J.S.2A:34-23.

����
Be It
Enacted
by the Senate and General Assembly of
the State of New Jersey:

���� 1.��� N.J.S.2A:34-23 is
amended to read as follows:

���� 2A:34-23.�� Alimony,
maintenance.

���� Pending any matrimonial action
or action for dissolution of a civil union brought in this State or elsewhere,
or after judgment of divorce or dissolution or maintenance, whether obtained in
this State or elsewhere, the court may make such order as to the alimony or
maintenance of the parties, and also as to the care, custody, education and
maintenance of the children, or any of them, as the circumstances of the
parties and the nature of the case shall render fit, reasonable and just, and
require reasonable security for the due observance of such orders, including,
but not limited to, the creation of trusts or other security devices, to assure
payment of reasonably foreseeable medical and educational expenses. Upon
neglect or refusal to give such reasonable security, as shall be required, or
upon default in complying with any such order, the court may award and issue
process for the immediate sequestration of the personal estate, and the rents
and profits of the real estate of the party so charged, and appoint a receiver
thereof, and cause such personal estate and the rents and profits of such real
estate, or so much thereof as shall be necessary, to be applied toward such
alimony and maintenance as to the said court shall from time to time seem
reasonable and just; or the performance of the said orders may be enforced by
other ways according to the practice of the court. Orders so made may be
revised and altered by the court from time to time as circumstances may
require.

���� The court may order one party
to pay a retainer on behalf of the other for expert and legal services when the
respective financial circumstances of the parties make the award reasonable and
just. In considering an application, the court shall review the financial
capacity of each party to conduct the litigation and the criteria for award of
counsel fees that are then pertinent as set forth by court rule.� Whenever any
other application is made to a court which includes an application for pendente
lite or final award of counsel fees, the court shall determine the appropriate
award for counsel fees, if any, at the same time that a decision is rendered on
the other issue then before the court and shall consider the factors set forth
in the court rule on counsel fees, the financial circumstances of the parties,
and the good or bad faith of either party. The court may not order a retainer
or counsel fee of a party convicted of an attempt or conspiracy to murder the
other party to be paid by the party who was the intended victim of the attempt
or conspiracy.

���� a.���� In determining the
amount to be paid by a parent for support of the child and the period during
which the duty of support is owed, the court in those cases not governed by
court rule shall consider, but not be limited to, the following factors:

���� (1)�� Needs of the child;

���� (2)�� Standard of living and
economic circumstances of each parent;

���� (3)�� All sources of income
and assets of each parent;

���� (4)�� Earning ability of each
parent, including educational background, training, employment skills, work
experience, custodial responsibility for children including the cost of
providing child care and the length of time and cost of each parent to obtain
training or experience for appropriate employment;

���� (5)�� Need and capacity of the
child for education, including higher education;

���� (6)�� Age and health of the
child and each parent;

���� (7)�� Income, assets and
earning ability of the child;

���� (8)�� Responsibility of the
parents for the court-ordered support of others;

���� (9)�� Reasonable debts and
liabilities of each child and parent; and

���� (10) Any other factors the
court may deem relevant.

���� The obligation to pay support
for a child who has not been emancipated by the court shall not terminate
solely on the basis of the child's age if the child suffers from a severe
mental or physical incapacity that causes the child to be financially dependent
on a parent.� The obligation to pay support for that child shall continue until
the court finds that the child is relieved of the incapacity or is no longer
financially dependent on the parent.� However, in assessing the financial
obligation of the parent, the court shall consider, in addition to the factors
enumerated in this section, the child's eligibility for public benefits and
services for people with disabilities and may make such orders, including an
order involving the creation of a trust, as are necessary to promote the
well-being of the child.

���� As used in this section
"severe mental or physical incapacity" shall not include a child's
abuse of, or addiction to, alcohol or controlled substances.

���� b.��� In all actions brought
for divorce, dissolution of a civil union, divorce from bed and board, legal
separation from a partner in a civil union couple or nullity the court may
award one or more of the following types of alimony: open durational alimony; rehabilitative
alimony; limited duration alimony or reimbursement alimony to either party.� In
so doing the court shall consider, but not be limited to, the following
factors:

���� (1)�� The actual need and
ability of the parties to pay;

���� (2)�� The duration of the
marriage or civil union;

���� (3)�� The age, physical and
emotional health of the parties;

���� (4)�� The standard of living
established in the marriage or civil union and the likelihood that each party
can maintain a reasonably comparable standard of living, with neither party
having a greater entitlement to that standard of living than the other;

���� (5)�� The earning capacities,
educational levels, vocational skills, and employability of the parties;

���� (6)�� The length of absence
from the job market of the party seeking maintenance;

���� (7)�� The parental
responsibilities for the children;

���� (8)�� The time and expense
necessary to acquire sufficient education or training to enable the party
seeking maintenance to find appropriate employment, the availability of the
training and employment, and the opportunity for future acquisitions of capital
assets and income;

���� (9)�� The history of the
financial or non-financial contributions to the marriage or civil union by each
party including contributions to the care and education of the children and
interruption of personal careers or educational opportunities;

���� (10) The equitable
distribution of property ordered and any payouts on equitable distribution,
directly or indirectly, out of current income, to the extent this consideration
is reasonable, just and fair;

���� (11) The income available to
either party through investment of any assets held by that party;

���� (12) The tax treatment and
consequences to both parties of any alimony award, including the designation of
all or a portion of the payment as a non-taxable payment;

���� (13) The nature, amount, and
length of pendente lite support paid, if any; and

���� (14) Any other factors which
the court may deem relevant.

���� In each case where the court
is asked to make an award of alimony, the court shall consider and assess
evidence with respect to all relevant statutory factors.� If the court
determines that certain factors are more or less relevant than others, the
court shall make specific written findings of fact and conclusions of law on
the reasons why the court reached that conclusion.� No factor shall be elevated
in importance over any other factor unless the court finds otherwise, in which
case the court shall make specific written findings of fact and conclusions of
law in that regard.

���� When a share of a retirement
benefit is treated as an asset for purposes of equitable distribution, the
court shall not consider income generated thereafter by that share for purposes
of determining alimony.

���� c.���� In any case in which
there is a request for an award of alimony, the court shall consider and make
specific findings on the evidence about all of the statutory factors set forth
in subsection b. of this section.

���� For any marriage or civil
union less than 20 years in duration, the total duration of alimony shall not,
except in exceptional circumstances, exceed the length of the marriage or civil
union.� Determination of the length and amount of alimony shall be made by the
court pursuant to consideration of all of the statutory factors set forth in
subsection b. of this section.� In addition to those factors, the court shall
also consider the practical impact of the parties' need for separate residences
and the attendant increase in living expenses on the ability of both parties to
maintain a standard of living reasonably comparable to the standard of living
established in the marriage or civil union, to which both parties are entitled,
with neither party having a greater entitlement thereto.

���� Exceptional circumstances
which may require an adjustment to the duration of alimony include:

���� (1)�� The ages of the parties
at the time of the marriage or civil union and at the time of the alimony
award;

���� (2)�� The degree and duration
of the dependency of one party on the other party during the marriage or civil
union;

���� (3)�� Whether a spouse or
partner has a chronic illness or unusual health circumstance;

���� (4)�� Whether a spouse or
partner has given up a career or a career opportunity or otherwise supported
the career of the other spouse or partner;

���� (5)�� Whether a spouse or
partner has received a disproportionate share of equitable distribution;

���� (6)�� The impact of the
marriage or civil union on either party's ability to become self-supporting,
including but not limited to either party's responsibility as primary caretaker
of a child;

���� (7)�� Tax considerations of
either party;

���� (8)�� Any other factors or
circumstances that the court deems equitable, relevant and material.

���� An award of alimony for a
limited duration may be modified based either upon changed circumstances, or
upon the nonoccurrence of circumstances that the court found would occur at the
time of the award.� The court may modify the amount of such an award, but shall
not modify the length of the term except in unusual circumstances.

���� In determining the length of
the term, the court shall consider the length of time it would reasonably take
for the recipient to improve his or her earning capacity to a level where
limited duration alimony is no longer appropriate.

���� d.��� Rehabilitative alimony
shall be awarded based upon a plan in which the payee shows the scope of
rehabilitation, the steps to be taken, and the time frame, including a period
of employment during which rehabilitation will occur.� An award of
rehabilitative alimony may be modified based either upon changed circumstances,
or upon the nonoccurrence of circumstances that the court found would occur at
the time of the rehabilitative award.

���� This section is not intended
to preclude a court from modifying alimony awards based upon the law.

���� e.���� Reimbursement alimony
may be awarded under circumstances in which one party supported the other
through an advanced education, anticipating participation in the fruits of the
earning capacity generated by that education.� An award of reimbursement alimony
shall not be modified for any reason.

���� f.���� Except as provided in
subsection i., nothing in this section shall be construed to limit the court's
authority to award open durational alimony, limited duration alimony,
rehabilitative alimony or reimbursement alimony, separately or in any
combination, as warranted by the circumstances of the parties and the nature of
the case.

���� g.��� In all actions for
divorce or dissolution other than those where judgment is granted solely on the
ground of separation the court may consider also the proofs made in
establishing such ground in determining an amount of alimony or maintenance
that is fit, reasonable and just.� In all actions for divorce, dissolution of
civil union, divorce from bed and board, or legal separation from a partner in
a civil union couple where judgment is granted on the ground of
institutionalization for mental illness the court may consider the possible
burden upon the taxpayers of the State as well as the ability of the party to
pay in determining an amount of maintenance to be awarded.

���� h.��� Except as provided in
this subsection, in all actions where a judgment of divorce, dissolution of
civil union, divorce from bed and board or legal separation from a partner in a
civil union couple is entered the court may make such award or awards to the
parties, in addition to alimony and maintenance, to effectuate an equitable
distribution of the property, both real and personal, which was legally and
beneficially acquired by them or either of them during the marriage or civil
union. However, all such property, real, personal or otherwise, legally or
beneficially acquired during the marriage or civil union by either party by way
of gift, devise, or intestate succession shall not be subject to equitable
distribution, except that interspousal gifts or gifts between partners in a
civil union couple shall be subject to equitable distribution. The court may
not make an award concerning the equitable distribution of property on behalf
of a party convicted of an attempt or conspiracy to murder the other party.

���� i.���� No person convicted of
Murder, N.J.S.2C:11-3; Manslaughter, N.J.S.2C:11-4; Criminal Homicide,
N.J.S.2C:11-2; Aggravated Assault, under subsection b. of N.J.S.2C:12-1; or a
substantially similar offense under the laws of another jurisdiction, may
receive alimony if:� (1) the crime results in death or serious bodily injury,
as defined in subsection b. of N.J.S.2C:11-1, to a family member of a divorcing
party; and (2) the crime was committed after the marriage or civil union. A
person convicted of an attempt or conspiracy to commit murder may not receive
alimony from the person who was the intended victim of the attempt or
conspiracy.� Nothing in this subsection shall be construed to limit the
authority of the court to deny alimony for other bad acts.

���� As used in this subsection:

���� "Family member"
means a spouse, child, parent, sibling, aunt, uncle, niece, nephew, first
cousin, grandparent, grandchild, father-in-law, mother-in-law, son-in-law,
daughter-in-law, stepparent, stepchild, stepbrother, stepsister, half brother, or
half sister, whether the individual is related by blood, marriage or civil
union, or adoption.

���� j.���� Alimony may be modified
or terminated upon the prospective or actual retirement of the obligor.

���� (1)�� There shall be a
rebuttable presumption that alimony shall terminate upon the obligor spouse or
partner attaining full retirement age, except that any arrearages that have
accrued prior to the termination date shall not be vacated or annulled. The
court may set a different alimony termination date for good cause shown based
on specific written findings of fact and conclusions of law.

���� The rebuttable presumption may
be overcome if, upon consideration of the following factors and for good cause
shown, the court determines that alimony should continue:

���� (a)�� The ages of the parties
at the time of the application for retirement;

���� (b)�� The ages of the parties
at the time of the marriage or civil union and their ages at the time of entry
of the alimony award;

���� (c)�� The degree and duration
of the economic dependency of the recipient upon the payor during the marriage
or civil union;

���� (d)�� Whether the recipient
has foregone or relinquished or otherwise sacrificed claims, rights or property
in exchange for a more substantial or longer alimony award;

���� (e)�� The duration or amount
of alimony already paid;

���� (f)�� The health of the
parties at the time of the retirement application;

���� (g)�� Assets of the parties at
the time of the retirement application;

���� (h)�� Whether the recipient
has reached full retirement age as defined in this section;

���� (i)��� Sources of income, both
earned and unearned, of the parties;

���� (j)��� The ability of the
recipient to have saved adequately for retirement; and

���� (k)�� Any other factors that
the court may deem relevant.

���� If the court determines, for
good cause shown based on specific written findings of fact and conclusions of
law, that the presumption has been overcome, then the court shall apply the
alimony factors as set forth in subsection b. of this section to the parties'
current circumstances in order to determine whether modification or termination
of alimony is appropriate. If the obligor intends to retire but has not yet
retired, the court shall establish the conditions under which the modification
or termination of alimony will be effective.

���� (2)�� Where the obligor seeks
to retire prior to attaining the full retirement age as defined in this
section, the obligor shall have the burden of demonstrating by a preponderance
of the evidence that the prospective or actual retirement is reasonable and made
in good faith.� Both the obligor's application to the court for modification or
termination of alimony and the obligee's response to the application shall be
accompanied by current Case Information Statements or other relevant documents
as required by the Rules of Court, as well as the Case Information Statements
or other documents from the date of entry of the original alimony award and
from the date of any subsequent modification.

���� In order to determine whether
the obligor has met the burden of demonstrating that the obligor's prospective
or actual retirement is reasonable and made in good faith, the court shall
consider the following factors:

���� (a)�� The age and health of
the parties at the time of the application;

���� (b)�� The obligor's field of
employment and the generally accepted age of retirement for those in that
field;

���� (c)�� The age when the obligor
becomes eligible for retirement at the obligor's place of employment, including
mandatory retirement dates or the dates upon which continued employment would
no longer increase retirement benefits;

���� (d)�� The obligor's motives in
retiring, including any pressures to retire applied by the obligor's employer
or incentive plans offered by the obligor's employer;

���� (e)�� The reasonable
expectations of the parties regarding retirement during the marriage or civil
union and at the time of the divorce or dissolution;

���� (f)�� The ability of the
obligor to maintain support payments following retirement, including whether
the obligor will continue to be employed part-time or work reduced hours;

���� (g)�� The obligee's level of
financial independence and the financial impact of the obligor's retirement
upon the obligee; and

���� (h)�� Any other relevant
factors affecting the obligor's decision to retire and the parties' respective
financial positions.

���� If the obligor intends to
retire but has not yet retired, the court shall establish the conditions under
which the modification or termination of alimony will be effective.

���� (3)�� When a retirement
application is filed in cases in which there is an existing final alimony order
or enforceable written agreement established prior to the effective date of
this act, the obligor's reaching full retirement age as defined in this section
shall be deemed a good faith retirement age.� Upon application by the obligor
to modify or terminate alimony, both the obligor's application to the court for
modification or termination of alimony and the obligee's response to the
application shall be accompanied by current Case Information Statements or
other relevant documents as required by the Rules of Court, as well as the Case
Information Statements or other documents from the date of entry of the
original alimony award and from the date of any subsequent modification. In
making its determination, the court shall consider the ability of the obligee
to have saved adequately for retirement as well as the following factors in
order to determine whether the obligor, by a preponderance of the evidence, has
demonstrated that modification or termination of alimony is appropriate:

���� (a)�� The age and health of
the parties at the time of the application;

���� (b)�� The obligor's field of
employment and the generally accepted age of retirement for those in that
field;

���� (c)�� The age when the obligor
becomes eligible for retirement at the obligor's place of employment, including
mandatory retirement dates or the dates upon which continued employment would
no longer increase retirement benefits;

���� (d)�� The obligor's motives in
retiring, including any pressures to retire applied by the obligor's employer
or incentive plans offered by the obligor's employer;

���� (e)�� The reasonable
expectations of the parties regarding retirement during the marriage or civil
union and at the time of the divorce or dissolution;

���� (f)�� The ability of the
obligor to maintain support payments following retirement, including whether
the obligor will continue to be employed part-time or work reduced hours;

���� (g)�� The obligee's level of
financial independence and the financial impact of the obligor's retirement
upon the obligee; and

���� (h)�� Any other relevant
factors affecting the parties' respective financial positions.

���� (4)�� The assets distributed
between the parties at the time of the entry of a final order of divorce or
dissolution of a civil union shall not be considered by the court for purposes
of determining the obligor's ability to pay alimony following retirement.

���� k.��� When a non-self-employed
party seeks modification of alimony, the court shall consider the following
factors:

���� (1)�� The reasons for any loss
of income;

���� (2)�� Under circumstances
where there has been a loss of employment, the obligor's documented efforts to
obtain replacement employment or to pursue an alternative occupation;

���� (3)�� Under circumstances
where there has been a loss of employment, whether the obligor is making a good
faith effort to find remunerative employment at any level and in any field;

���� (4)�� The income of the
obligee; the obligee's circumstances; and the obligee's reasonable efforts to
obtain employment in view of those circumstances and existing opportunities;

���� (5)�� The impact of the
parties' health on their ability to obtain employment;

���� (6)�� Any severance
compensation or award made in connection with any loss of employment;

���� (7)�� Any changes in the
respective financial circumstances of the parties that have occurred since the
date of the order from which modification is sought;

���� (8)�� The reasons for any
change in either party's financial circumstances since the date of the order
from which modification is sought, including, but not limited to, assessment of
the extent to which either party's financial circumstances at the time of the
application are attributable to enhanced earnings or financial benefits
received from any source since the date of the order;

���� (9)�� Whether a temporary
remedy should be fashioned to provide adjustment of the support award from
which modification is sought, and the terms of any such adjustment, pending
continuing employment investigations by the unemployed spouse or partner; and

���� (10) Any other factor the
court deems relevant to fairly and equitably decide the application.

���� Under circumstances where the
changed circumstances arise from the loss of employment, the length of time a
party has been involuntarily unemployed or has had an involuntary reduction in
income shall not be the only factor considered by the court when an application
is filed by a non-self-employed party to reduce alimony because of involuntary
loss of employment.� The court shall determine the application based upon all
of the enumerated factors, however, no application shall be filed until a party
has been unemployed, or has not been able to return to or attain employment at
prior income levels, or both, for a period of 90 days.� The court shall have
discretion to make any relief granted retroactive to the date of the loss of
employment or reduction of income.

���� l.���� When a self-employed
party seeks modification of alimony because of an involuntary reduction in
income since the date of the order from which modification is sought, then that
party's application for relief must include an analysis that sets forth the economic
and non-economic benefits the party receives from the business, and which
compares these economic and non-economic benefits to those that were in
existence at the time of the entry of the order.

���� m.�� When assessing a
temporary remedy, the court may temporarily suspend support, or reduce support
on terms; direct that support be paid in some amount from assets pending
further proceedings; direct a periodic review; or enter any other order the
court finds appropriate to assure fairness and equity to both parties.

���� n.��� Alimony may be
modified,

suspended or terminated if the payee cohabits with another person. Cohabitation
involves a mutually supportive, intimate personal relationship in which a
couple has undertaken duties and privileges that are commonly associated with
marriage or civil union but does not necessarily maintain a single common
household.

���� When assessing whether
cohabitation is occurring, the court shall consider the following:

���� (1)�� Intertwined finances
such as joint bank accounts and other joint holdings or liabilities;

���� (2)�� Sharing or joint
responsibility for living expenses;

���� (3)�� Recognition of the
relationship in the couple's social and family circle;

���� (4)�� Living together, the
frequency of contact, the duration of the relationship, and other indicia of a
mutually supportive intimate personal relationship;

���� (5)�� Sharing household
chores;

���� (6)�� Whether the recipient of
alimony has received an enforceable promise of support from another person
within the meaning of subsection h. of R.S.25:1-5; and

���� (7)�� All other relevant
evidence.�

���� In evaluating whether
cohabitation is occurring and whether alimony should be
modified,

suspended or terminated, the court shall also consider the length of the
relationship
, whether the recipient of alimony has received an economic
benefit from the relationship, and whether the recipient of alimony has
supported or subsidized the other cohabitant under circumstances sufficient to
entitle the supporting spouse to relief
.� A court may not find an absence
of cohabitation solely on grounds that the couple does not live together on a
full-time basis.

����
When modifying the duration
and amount of an alimony award based on cohabitation, the court shall consider
the degree to which the relationship has reduced the financial needs of the
supported spouse.�

���� As used in this section:

���� "Full retirement
age" shall mean the age at which a person is eligible to receive full
retirement for full retirement benefits under section 216 of the federal Social
Security Act (42 U.S.C. s.416).

(cf: P.L.2014, c.42, s.1)

���� 2.��� This act shall take
effect immediately and shall not be construed to modify any provision which
relates to cohabitation that has been ordered or agreed upon, or other
specifically bargained for contractual provisions that have been incorporated
into:

���� a.���� a final judgment of
divorce or dissolution;�

���� b.��� a final order that has
concluded post-judgment litigation; or

c.� any enforceable written
agreement between the parties.

STATEMENT

���� This bill would amend
N.J.S.2A:34-23 to enable the court to modify an alimony award based on changed
circumstances resulting from cohabitation of a supported spouse.

���� N.J.S.2A:34-23 defines cohabitation
as a mutually supportive, intimate personal relationship in which a couple has
undertaken duties and privileges that are commonly associated with marriage or
civil union but does not necessarily maintain a single common household.� The
statute sets forth the factors to be considered by the court when assessing
whether cohabitation is occurring.� The statute also provides that a court may
not find an absence of cohabitation solely on grounds that the couple does not
live together on a full-time basis.

���� Currently, a court may suspend
or terminate an alimony award if a payee cohabits with another person. �However,
an alimony award may not be modified as a result of cohabitation.� Under the
bill, the court would be able to modify an alimony award as an alternative
remedy to suspension or termination.

���� The factors to be considered
by the court when determining whether cohabitation is occurring and whether
alimony should be modified, suspended or terminated are enumerated in
subsection n. of N.J.S.2A:34-23.� Along with these factors, the bill would also
require the court to consider whether the recipient of alimony has received an
economic benefit from the relationship, and whether the recipient of alimony has
supported or subsidized the other cohabitant under circumstances sufficient to
entitle the supporting spouse to relief.�

���� When modifying the duration
and amount of an alimony award as a result of cohabitation, the bill would
require the court to consider the degree to which the relationship has reduced
the financial needs of the supported spouse.�

���� The bill would take effect
immediately and would not be construed to modify any provision which relates to
cohabitation that has been ordered or agreed upon, or other specifically
bargained for contractual provisions that have been incorporated into a final
judgment of divorce or dissolution; a final order that has concluded
post-judgment litigation; or any enforceable written agreement between the
parties.