In Landau v. Landau, the Appellate Division recently upheld the requirement that a prima facie showing of changed circumstances must be made "before a court will order discovery of an ex-spouse's financial status" even after the 2014 amendments to the alimony statute, N.J.S.A. 2A: 34-23(n), defining cohabitation. The requirement to establish changed circumstances to obtain a modification of divorce obligations was established in 1980 in Lepis v. Lepis and it is still good law.

Lepis held that courts have equitable powers to modify alimony and support orders pursuant to N.J.S.A. 2A: 34-23. Therefore alimony and support orders deal only with the present obligations of the former spouses and are always subject to review and modification if there is a prima facie showing of changed circumstances. Changed circumstances are those that "impair the dependent spouse's ability to maintain the standard of living reflected in the original decree or agreement" or conversely those that "render all or a portion of support received unnecessary for maintaining that standard." There must be a prima facie showing of changed circumstances, Lepis held, before a court will order discovery of an ex-spouse's financial status. In Lepis, where the wife sought an upward modification of alimony and child support four years after the judgment of divorce, incorporating a comprehensive agreement. The court ordered discovery of the husband's tax returns. The wife had sustained her burden of making a prima facie showing of changed circumstances by alleging with specificity the increases in her own and her children's needs. Despite having a cloak of confidentiality, the former husband's tax returns were ordered produced.

In Landau, the ex-husband had filed a motion to suspend or terminate alimony based on his former wife's cohabitation and the 2014 amendments to the alimony statute, N.J.S.A. 2A: 34-23(n). The plaintiff former husband claimed that his ex-spouse was cohabiting with a man for over a year and therefore the limited duration alimony of $44,000 per month for three years followed by $40,000 per month for four and a half years should terminate based on the language of their agreement which terminated the payments in the event of cohabitation. In his motion, plaintiff husband detailed his former wife's contacts with a man, including a certification by an ex-state trooper who had surveiled the defendant and her friend. Defendant claimed that the relationship was merely a dating relationship and not tantamount to marriage and that having a boyfriend is not equivalent to cohabiting. Nevertheless, the trial judge authorized "limited" discovery so that the former husband could "make out a prima facie case." The discovery authorized included depositions of the defendant and her boyfriend and production of comprehensive financial documents. In addition, the former wife's tax returns and the boyfriend's utility bills, bank and credit card statements, and copies of all communications between the former wife and her boyfriends were discoverable.

The Appellate Division granted leave to appeal and stayed discovery. It held it was reversible error to order discovery without a prima facie showing of cohabitation. The husband relied on the amendments of N.J.S.A. 2A: 34-23(n), arguing that the Legislature "signaled a clear departure from then-existing law—i.e., Lepis … and its progeny—with respect to analyzing motions to terminate alimony based upon cohabitation." The Appellate Division disagreed, finding that a court's power under N.J.S.A. 2A: 34-23 was not altered by the 2014 amendments and courts retain the "equitable power to review and modify such orders 'on a showing of changed circumstances.'" Although it might be difficult for plaintiff to make a prima facie showing of cohabitation, he was not entitled to know the intimate details of defendant's and her boyfriend's life and finances without it. Since there had been no prima facie showing of changed circumstances, the trial court's order on discovery was reversed.

Landau confirms that the Lepis "paradigm," which requires a party seeking a modification to establish a prima facie showing of changed circumstances before discovery of an ex-spouse's financial status is authorized, strikes the right balance between the parties' competing interests.

The discovery ordered by the trial court was extraordinarily intrusive for both the defendant and her boyfriend. The Appellate Division was correct that more is required before such invasive discovery should be allowed. The 2014 alimony amendment had adopted the Supreme Court's definition of cohabitation in Konzelman v. Konzelman, noting that it involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. The Supreme Court had expressed concern that a romantic relationship with some overnight stays might not rise to the level of cohabitation or else a former spouse would be able to exercise too much control over an ex-spouse; more evidence of intimacy, financial intermingling and public revelation of the relationship was required. We agree and we believe the decision in Landau, which acknowledges both the difficulties of the moving party and the privacy rights of the non-moving party, balances such concerns.